Perpetual Limited v Gelato Ingredients Manufacturers of Australia Pty Ltd [2014] NSWCATCD 25

Perpetual Limited v Gelato Ingredients Manufacturers of Australia Pty Ltd [2014] NSWCATCD 25

Perpetual was not bound by alleged representations of Mr Swan and performed its contractual obligations regarding air conditioning; the inadequacy experienced by Gelato resulted from Gelato's equipment and fitout and was the lessee's responsibility. Perpetual did, however, breach clause 14.2 and the covenant for quiet enjoyment by erecting barricades outside the premises without notice, causing recoverable loss of $26,659.00, but that breach sounded in damages only and did not amount to repudiation. Gelato unlawfully repudiated the lease, triggering Perpetual's entitlement to arrears, the clause 4.9 fit out amount and limited loss-of-bargain damages, but Perpetual failed to take...

Jurisdiction
Australia
Judgment Date
14 March 2014
Procedural Posture
Retail Lease Dispute / Principal Judgment After Final Hearing of Transferred District Court Proceedings and Related Tribunal Proceedings
Outcome
Gelato recovered damages for breach of quiet enjoyment; Perpetual recovered damages and arrears for Gelato's repudiation, with no interest and provisionally no order as to costs.
Legal Topics
['breach of Covenant for Quiet Enjoyment' 'repudiation by Lessee' 'air Conditioning Obligations Under Retail Lease' 'mitigation of Loss' 'fit Out Contribution' 'guarantor Liability']
['retail Leases' 'contract Law' 'property Law' 'damages'] ['breach of Covenant for Quiet Enjoyment' 'repudiation by Lessee' 'air Conditioning Obligations Under Retail Lease' 'mitigation of Loss' 'fit Out Contribution' 'guarantor Liability']

Case Brief

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Procedural Posture

Retail Lease Dispute / Principal Judgment After Final Hearing of Transferred District Court Proceedings and Related Tribunal Proceedings

Legal Issues

  1. 1 ['Whether Perpetual breached obligations under the lease in relation to the air conditioning of the premises.' 'Whether statements by Mr Swan bound Perpetual or were relied on by Gelato.' 'Whether erection of barricades outside the premises breached clause 14.2 of the lease and the covenant for quiet enjoyment.' 'Whether any breach by Perpetual entitled Gelato to repudiate or rescind the lease.' 'Whether Gelato unlawfully repudiated the lease and what damages were recoverable by Perpetual.' 'Whether Perpetual failed to mitigate its loss after termination.']

Ratio Decidendi

Perpetual was not bound by alleged representations of Mr Swan and performed its contractual obligations regarding air conditioning; the inadequacy experienced by Gelato resulted from Gelato's equipment and fitout and was the lessee's responsibility. Perpetual did, however, breach clause 14.2 and the covenant for quiet enjoyment by erecting barricades outside the premises without notice, causing recoverable loss of $26,659.00, but that breach sounded in damages only and did not amount to repudiation. Gelato unlawfully repudiated the lease, triggering Perpetual's entitlement to arrears, the clause 4.9 fit out amount and limited loss-of-bargain damages, but Perpetual failed to take...

Court Disposition

Gelato recovered damages for breach of quiet enjoyment; Perpetual recovered damages and arrears for Gelato's repudiation, with no interest and provisionally no order as to costs.

Orders

  • ['That Perpetual pay Gelato $26,659.00.' 'That Gelato and Mr Di Francesca pay Perpetual $28,500.00.' 'Subject to paragraph 90 above no order as to costs.']