Longjing Pty Ltd v Perpetual Nominees Limited [2019] NSWSC 1098

Longjing Pty Ltd v Perpetual Nominees Limited [2019] NSWSC 1098

The Lease commenced on 19 October 2015, the Fitout Access Date when the Plaintiff entered possession of the Premises for fitout. The absence of a formal cl 4.2 notice did not prevent commencement because the parties had agreed the relevant dates, the Plaintiff took possession, and their conduct made it commercially unrealistic to conclude that no lease had commenced. The Plaintiff breached its obligations to open during Core Trading Hours and to pay rent, did not remedy those breaches after notice and further indulgence, and cl 10.4(d) did not displace the Defendant's termination right under cl 18. The alleged January and February representations were not proved, and the Defendant's...

Jurisdiction
Australia
Judgment Date
27 August 2019
Procedural Posture
Equity Proceeding Concerning a Commercial Lease, Alleged Breach of Contract, Unconscionable Conduct and Misleading or Deceptive Conduct, With a Statement of Claim and Cross Claim / Principal Judgment After Hearing
Outcome
Plaintiff's Statement of Claim dismissed; judgment for the Cross-Claimant against each Cross-Defendant.
Legal Topics
['construction of Agreement for Lease and Lease' 'commencement of Retail Shop Lease' 'breach of Essential Term' 'termination of Lease' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'damages on Cross Claim' 'guarantee Obligations']
['contract Law' 'leases' 'equity' 'consumer Law'] ['construction of Agreement for Lease and Lease' 'commencement of Retail Shop Lease' 'breach of Essential Term' 'termination of Lease' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'damages on Cross Claim' 'guarantee Obligations']

Case Brief

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Procedural Posture

Equity Proceeding Concerning a Commercial Lease, Alleged Breach of Contract, Unconscionable Conduct and Misleading or Deceptive Conduct, With a Statement of Claim and Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['When did the Lease commence?' "Was the Defendant entitled to terminate the Lease on account of the Plaintiff's breach of cl 10.4 of the Lease?" 'Did the Defendant engage in misleading or deceptive conduct or unconscionable conduct in terminating the Lease on 1 March 2016?' 'What is the quantum of damages suffered by the Defendant or by the Plaintiff?']

Ratio Decidendi

The Lease commenced on 19 October 2015, the Fitout Access Date when the Plaintiff entered possession of the Premises for fitout. The absence of a formal cl 4.2 notice did not prevent commencement because the parties had agreed the relevant dates, the Plaintiff took possession, and their conduct made it commercially unrealistic to conclude that no lease had commenced. The Plaintiff breached its obligations to open during Core Trading Hours and to pay rent, did not remedy those breaches after notice and further indulgence, and cl 10.4(d) did not displace the Defendant's termination right under cl 18. The alleged January and February representations were not proved, and the Defendant's...

Court Disposition

Plaintiff's Statement of Claim dismissed; judgment for the Cross-Claimant against each Cross-Defendant.

Orders

  • ["Orders that the Plaintiff's Statement of Claim be dismissed." 'Orders that there be judgment for the Cross-Claimant against each of the Cross-Defendants in the sum of $252,936.' "Orders that the Plaintiff pay the Defendant's costs of the Statement of Claim." "Orders that the Cross-Defendants pay the...