A Melbourne CBD serviced office sub-tenant has won a long running battle to compel the sub-lessor to provide enough bathroom swipe fobs to avoid its tenants the embarrassment of being locked out of common area toilets.

Occupying about 25% of level 13 of the 50 Market St strata building owned by a company related to the sub-lessor, Purple Tangerine Pty Ltd rents out its premises to up to 6 different organisations.

The serviced office premises houses up to 24 personnel, 19 male and five female, many requiring 24 hour access.

Following an “incident with an intruder” in October 2012, the sub-lessor – whose tenure was over the entire floor – increased security by installing locks on the toilets and issuing key swipes.

It also locked off elevator access to level 13 except to persons in possession of a swipe fob.

The landlord provided Tangerine with just 10 swipes for all personnel including cleaning and servicing staff.

After the landlord ignored numerous complaints and pleas that such number was unrealistic and oppressive to the business it was carrying on as permitted by the sub-lease, Tangerine sought compensation and an interlocutory injunction via an application to the Victorian Supreme Court.

The question before the court was whether there had been a “substantial interference” with the sub-lessee’s occupation and the court noted that the issue was the same whether the allegedly offensive conduct occurred in connection with the leased premises or those adjacent to it, namely the common areas.

The Melbourne court was of the view that the elevator and bathroom measures “operated to severely restrict access by staff and visitors … unless the persons seeking access possesses a swipe”.

“The inability to gain access to toilets is embarrassing if not affronting to staff, whether the restriction occurs during the ordinary office hours or out of hours. It is also a breach of occupational health and safety requirements”.

The court decided on an interlocutory basis that the sub-lessor “had substantially interfered with the plaintiff’s occupation and use of the premises” and on the balance of convenience an injunction compelling the issue of further fobs and swipe cards sufficient to allow the sub-tenant to carry on its business, should be made without hesitation.

The terms of the injunction  require the landlord to provide Tangerine at least 18 swipe cards or fobs on the basis that the tenant should pay $50 per fob by way of security for replacements.

The dispute will in due course go to trial to determine compensation for the disruption to Tangerine’s business –  it asserts that a number of the serviced office tenants vacated as a result of the disruption – up to the date of expiration of the sublease  in August 2014.

Purple Tangerine Pty Ltd v Australian Financial Loan Management Pty Ltd Melbourne Garde J [2013] (2013) VSC 411 02 August 2013


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