T & L Alexandria Pty Ltd v Sharvain Facades Pty Ltd [2023] NSWSC 947

T & L Alexandria Pty Ltd v Sharvain Facades Pty Ltd [2023] NSWSC 947

The landlords' right under the lease to demand retrospective payment for actual outgoings is subject to an implied term requiring the demand to be made within a reasonable time after the relevant outgoings year, assessed by reference to the date that all necessary information was available. The landlords' July 2019 and January 2020 demands for outgoings were not validly made within that period and fail. The landlords' threats to terminate the lease for non-payment of these amounts constituted repudiation. Sharvain accepted the repudiation and validly terminated the lease. Both sides' other claims, including alleged misleading or deceptive conduct, loss of bargain damages, make good and...

Parties
First Plaintiff/first Cross Defendant: T & L Alexandria Pty Ltd (ACN 624 661 776) as trustee for the T & L Alexandria Family Trust; Second Plaintiff/second Cross Defendant: T & L Reich Investments Pty Ltd (ACN 081 629 156); First Defendant/cross Claimant: Sharvain Facades Pty Ltd (ACN 116 437 462); Second Defendant: Bernard Matthew McSorley
Jurisdiction
Australia
Judgment Date
14 August 2023
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
Plaintiffs' claims dismissed; declaration for the cross-claimant that it validly terminated the lease; other cross-claims dismissed.
Legal Topics
Commercial Lease, Lease Interpretation, Implied Terms, Repudiation, Termination of Lease, Estoppel, Misleading or Deceptive Conduct, Fixtures and Fittings
Equity Real Property Contracts Consumer Law Commercial Lease Lease Interpretation Implied Terms Repudiation +4 more

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Parties

T & L Alexandria Pty Ltd (ACN 624 661 776) as trustee for the T & L Alexandria Family Trust

First Plaintiff/first Cross Defendant

T & L Reich Investments Pty Ltd (ACN 081 629 156)

Second Plaintiff/second Cross Defendant

Sharvain Facades Pty Ltd (ACN 116 437 462)

First Defendant/cross Claimant

Bernard Matthew McSorley

Second Defendant

Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 Whether TLR/TLA could demand retrospective payment of outgoings under the commercial leases
  2. 2 Whether the landlord's right to reconcile and demand payment of outgoings is subject to a reasonable time
  3. 3 Whether Sharvain was liable to pay historic outgoings under expired leases

Ratio Decidendi

The landlords' right under the lease to demand retrospective payment for actual outgoings is subject to an implied term requiring the demand to be made within a reasonable time after the relevant outgoings year, assessed by reference to the date that all necessary information was available. The landlords' July 2019 and January 2020 demands for outgoings were not validly made within that period and fail. The landlords' threats to terminate the lease for non-payment of these amounts constituted repudiation. Sharvain accepted the repudiation and validly terminated the lease. Both sides' other claims, including alleged misleading or deceptive conduct, loss of bargain damages, make good and...

Court Disposition

Plaintiffs' claims dismissed; declaration for the cross-claimant that it validly terminated the lease; other cross-claims dismissed.

Orders

  • Dismiss the plaintiffs' claims for relief against the defendants.
  • Declare that the cross-claimant validly terminated the lease between the first cross-defendant (as landlord) and the cross-claimant (as tenant) dated on or about 1 March 2019 of the premises known as Unit 6 and Unit 7, 119-133 McEvoy Street, Alexandria, by notice in writing given to the first cross-defendant on 29...