A. No, I've not allowed that item as essential work."
64 There was further cross-examination which went on for some pages on the same point. It was also put to Mr Fransen that his opinion went contrary to that of a qualified engineer on the other side whom he had chosen, to use Mr Taylor's words, "to simply disbelieve". Mr Fransen agreed that he had done that on the basis that he was involved with the construction of 1800 properties after the hailstorm and he did not think that the engineer's report was consistent with them.
65 I cannot say that I would feel at all comfortable, having seen Mr Fransen in the witness box and having reread his report of the cross-examination, in accepting his evidence as opposed to the evidence on the other side.
66 Mr King also gave evidence for the plaintiff. He is a building consultant and was basically asked whether a circa 1950 super six asbestos fibre corrugated roof could be repaired.
67 Mr King was not cross-examined, but his report really doesn't go very far. Of course it is possible to replace a roof by putting a membrane over it, but he does not address the various problems that were thrown up by Mr Ratcliff and others.
68 There is little doubt that the landlord did use the opportunity to install the new roof that it was wanting to install in 1994. The plaintiff complains that that decision meant that what occurred was more than merely replacing the roof or doing repairs which are reasonably necessary or work which was reasonably necessary to protect the safety of people and property. As against that it is put that (a) there was no other feasible way of doing the work; (b) that even if there were some other method of doing the work, it would have taken a long time to get council approval during which time there would have been water penetration problems, particularly to the upper floors; (c) the work that was done was done with an eye to the tenant's convenience by doing much of the major work before 7.30 am.
69 The plaintiff's major complaint is that more work was done than would be necessary if the only thing that the landlord attended to was the repair of the hail damage. That, however, is not the vital question. When the hail damage occurred, the experts retained not only by the landlord but by the independent insurer who, of course, was trying to minimise its payout in any proper way it could, saw that there were such problems with the underlying infrastructure that more than a simple plastic sheet over the roof was required. Having looked at the expert evidence, the evidence of people like Mr Ratcliff is quite convincing and with great respect to him, Mr Fransen has had too superficial a view of the problem. In my view the work done in May, June and July 2000 was reasonably necessary having regard both to the hail damage and the nature, condition and use of the building.
70 It is to be noted that clause 8 is not limited to repairs or reinstatements. It specially mentions alterations, improvements and additions which come within the necessity for the safety of persons and property and included within that term is preservation.
71 In any event it has always been realised that a repair may involve some sort of renewal. As Buckley LJ said in Lurcott v Wakely [1911] 1 KB 905 at 924, "A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken, or missing; to make good the flashings and the like." Of course, the work in the instant case goes beyond that, but the principle is the same.
72 I considered the problem in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33. The central part of that case was what was the ambit of the landlord's duty to maintain lifts and I held that that duty meant that the landlord must not only attend to cases where there had been a malfunction of the lift and take preventative measures to ensure lifts would not malfunction, but also that the lifts would be replaced when a reasonable observer would be of the opinion that they had reached the end of their useful life.
73 Question 5 must thus be answered Yes, such work was reasonably necessary.
74 (6) It is very difficult to answer this question as such. I am not satisfied on the balance of probabilities that the question should be answered "Yes". Accordingly, I must answer it "No." I am not at all sure whether it is a relevant question in any event. That is because what appears to have happened is that had there been no extant development application and had the defendant's architects and other experts had to work from scratch, it may very well be that they would have designed a system which would have protected the building but did not involve all the work that was in fact done.
75 However, that was not the situation. The evidence, which I accept, is that in order to do the work relatively quickly it was appropriate to proceed with installing a new roof for which approval had already been obtained.
76 In fact, this may not have saved time as, because there was no safety net under the roof sheeting and there was a very questionable capacity of that sheeting to hold up a man or woman working on the roof, there were delays in erecting a safety net and scaffolding. However, at the time when the decision was made it was reasonable to approach the repairs in the way which was carried out.
77 I am not convinced to the appropriate level that any individual items of work were, strictly speaking, additional to those falling within the first limb of clause 8 of the lease. However, if any individual items were I would have thought it was irrelevant because one is looking at the total package as a reasonable method of coming to the appropriate result in as quick a way as possible.
78 (7) It would seem that there was some disturbance to the plaintiff by the work, but in order to examine the question properly one must look at the matters particularised in para 17 of the statement of claim and at the evidence given in respect of each one.
79 (a) Mr Anthony Liberiou swore that electricity had been cut off at various times including between 2 pm and 9.15 pm on 8 December 1999 and 8.15 am and 11 am on Saturday 18 December 1999. The tenant's then solicitors complained to the landlord about this in their letter of 21 December 1999. Mr Border admitted that electricity was cut twice, but on those occasions only to a single power point solely utilised for the restaurant's coffee machine. The disconnection was caused by the cutting of a wire which ran from the first floor distribution board through to the second floor roof and down the cavity wall to that power point. There was a delay in repairing it because the electrician couldn't find the wire that had broken but Mr Border believed temporary power was restored. Mr Liberiou says he cannot recall temporary power being provided by the landlord's electrician.
80 I accept that the power loss was only to one power point, the preponderance of the evidence, considering that Mr Liberiou cannot recollect, is that there was temporary power and accordingly this matter of itself is of little consequence.
81 (b) A rubbish skip was placed in position which obstructed the entrance to the rear of the premises causing difficulty to customers and persons delivering goods. I have stated the essence of the allegation particularised and para 13(b) of Mr Liberiou's affidavit really just repeats those words. Mr Border says that there was a skip located at the rear of the building for a few days early in the work before the scaffolding was erected. The purpose of this was to allow rubbish to be removed from the second floor minimising dust, noise and disturbance to the arcade. The skip was not obstructing the entrance and photographs were placed in evidence as to where the skip was located and it shows it to the east of the Knox Lane entrance to the arcade. Mr Border also says that more obstruction to the entrance is caused by the plaintiff's deliveries and the parking of Mr Liberiou's car than by the presence of the skip. Whether this is so or not does not really matter. I am not convinced on the evidence that there was any obstruction to the entrance which would prevent customers from entering and deliveries from being effected in any substantial way. Again, this of itself would not be sufficient to show a breach of the covenant.
82 (c) The next allegation is that dust, gravel and building waste was blown or fell onto tables, especially in the arcade. Again, the affidavit of Mr A Liberiou merely repeats the words. Mr Border denies the allegation and says that "The insurer, through its builder, went to extraordinary cost and effort to minimise dust and disruption from the building works. The suspended scaffolding was installed over the arcade with layers of builders' ply, forticon and carpet. All edges of the scaffolding were silicone sealed to ensure that the arcade could operate with minimal dust and disturbance." He further says that he was present in the building virtually every working day and never observed any disturbance to the restaurant. Furthermore he says there was other building work going on in the vicinity at what is known as the JAG site where the construction was protracted, dirty, noisy and encountered a number of problems. Mr Border and his evidence is reinforced from Mr Ratcliff who says that the work on the JAG building may well have produced dust, noise and disturbance to the plaintiff's café.
83 Mr Liberiou's reply to Mr Border's affidavit was primarily that the shadow created by the scaffold in the arcade blocked the sun and made the arcade tables cold and unattractive. He says that there was considerable noise from December 1999 to July 2000. Most of the complaints were a lack of light and noise. However, Mr Liberiou also said that there was dust on the outdoor tables, that is the arcade tables of a white colour and on a number of occasions the dust on the arcade floor was sufficiently thick that one could see footprints in the dust. Mr Liberiou concedes that there was also dust and noise from the JAG site, but says that the impact of the building work being done by the landlord was in his view greater. However, his affidavit is so framed that it is lack of the penetration of sunlight and noise which were the principal problems.
84 A Mr Dalton, a waiter, also gave evidence. He also said that he saw a lot of dust. However, during cross-examination Mr Dalton's powers of observation became extremely questionable when he could not even identify photographs of the scaffolding of which he complained in his affidavit.
85 Mr Liberiou's normal working hours at the restaurant were from 5 pm until midnight and he would attend the restaurant at least three times a week during the day. He certainly was not at the restaurant when a lot of the alleged problems with noise and dust were being caused.
86 Mr Liberiou did not fare too badly under cross-examination, but some of the photographs which were taken showing shadows of people in the day-time make one wonder whether his evidence about lack of sunlight was overstated. In any event, it was not the main complaint particularised.
87 Evidence was also given by Mr John Liberiou, another director of the plaintiff. He used to work from May 2000 until the present time from 6 am until 4 pm in the restaurant. He says that pieces of cement or sand fell on outdoor tables. They were quite small, but they were the subject of complaints by customers. Significantly he does not say very much more. Mr John Liberiou is the father of Mr Anthony Liberiou. He did not come across during cross-examination as a man with a very good memory, or indeed any close knowledge of what was happening around him. It may well be that he was concentrating more on the administration and finance side of the business.
88 Undoubtedly the building works did produce some dust and noise. However, I am not able to say on the evidence that it was sufficient to come within the range of being a substantial interference or disturbance.
89 (d) The next complaint is that there was an erection of scaffolding further restricting access to the premises by customers and delivery persons.
90 There is no evidence that any scaffolding blocked the entrance. Mr Anthony Liberiou's initial complaint was that the scaffolding restricted parking in Knox Lane. That of itself would not be a substantial interference with the demised premises or its appurtenances. This matter of itself is insufficient.
91 (e) The next complaint is loud noise from the use of jackhammers and electric saws. There was obviously noise. The affidavit talks about drills, jackhammers and workmen's mechanical instruments. The particulars, however, focus on jackhammers and electric saws. There were no jackhammers on the site though there were jackhammers on the JAG site. I am also satisfied that whilst there may have been one or two occasions after 4 pm when there was noise from the works, that work almost always finished at 4 pm and there was no appreciable noise after then. That was the peak trading time of the restaurant, though the evidence shows that it also did a steady trade during the day with people coming in for coffee and snacks and lunch.
92 Mr Anthony Liberiou's first affidavit referred to intermittent noise in para 14 and he affirmed this in cross-examination.
93 The more drastic evidence as to noise was given by Mr John Liberiou who only swore an affidavit late in the piece and as I say, it was based on memory, his memory was poor and I find it difficult to accept his evidence. I do not consider there is sufficient material to show that the noise was substantial interference.
94 (f) Finally there is the complaint about asbestos dust removed without proper precaution causing some to fall on the plaintiff's furniture. Apart from the evidence to which I have already referred about white dust, there is no acceptable evidence of this.
95 It would be a mistake to say that just because I am not satisfied of any of the matters particularised (a) to (f) that therefore there was no substantial interference with the lessee's enjoyment, one must look at the whole package. It seems to me that even looking at the whole package the plaintiff has exaggerated its problems. There was noise; there was dust, but nowhere to the extent asserted by the plaintiff and I do not consider that, even putting all the matters together, there was substantial disturbance of the tenant.
96 The question should thus be answered that there was inconvenience or disturbance to the lessee, but this does not constitute substantial disturbance so as to make out a breach of the covenant of quiet enjoyment.
97 (8) For the reasons given in (7), this should be answered "No". There is no breach of the covenant of quiet enjoyment.
98 (9) and (10) In view of my decision in (8), it is really unnecessary to look at clause 8 of the lease. This question asks whether the works in fact done were reasonably necessary for the safety of persons or property in the premises, and if so, whether as little inconvenience and disturbance to the plaintiff as was possible was occasioned in the manner of effecting the works. Because it is really not necessary to deal with the matter I will not expand on my reasons at length. It follows from what I have already said and what is implicit in what I have already said, that, although had there not been an existing development application the work might have been done in a different way, the work that was in fact done was reasonably necessary for the safety of persons or property in question and there was as little inconvenience and disturbance as was possible in the circumstances.
99 Accordingly, had I found that there was otherwise a breach of the covenant for quiet enjoyment I would have found for the landlord under clause 8.
100 (11) It follows that the answer to this question is "Yes".
101 (12) This question asked whether the hail damage required the total replacement of all the roof structure. With respect, this is not a question the answer to which would resolve the present dispute. No matter what the answer to this question, the work done by the landlord was not a breach of covenant and it fell within clause 8. Accordingly, I do not answer the question.
102 (13) This question is in the same plight as that dealt with in (12).
103 (14) For the reasons given above, it follows that the works were within the authority conferred on the landlord by clause 8.
104 I should note here that the same result follows if I were to apply the principle of derogation from the grant and indeed the way the case was argued the matter of what might be termed "breach" was argued as one whole.
105 So far as the counts in nuisance and negligence were concerned, no separate arguments were placed before the Court so that I do not need to consider these matters further.