Perpetual Trustee Company Limited v Eastern Pursuits Pty Limited [2023] NSWSC 813

Perpetual Trustee Company Limited v Eastern Pursuits Pty Limited [2023] NSWSC 813

Perpetual engaged in good faith negotiations in accordance with the COVID-19 regulations and National Code, was not barred from recovering arrears; Eastern failed to provide sufficient information, failed to pay any rent, and forfeited regulatory protections. No common intention was established regarding the liquor licence beyond the explicit lease terms; Perpetual did not engage in misleading or deceptive conduct, unconscionable conduct, nor was estopped or required to acknowledge any arrangement. Eastern's cross-claim failed. Judgment for Perpetual for arrears and interest.

Parties
Plaintiff/cross Defendant: Perpetual Trustee Company Limited ACN 000 001 007; First Defendant/first Cross Claimant: Eastern Pursuits Pty Limited ACN 100 738 092; Second Defendant/second Cross Claimant: Andrew Lazarus; Third Defendant/third Cross Claimant: Colin Parras
Jurisdiction
Australia
Judgment Date
13 July 2023
Procedural Posture
Commercial Lease Dispute (equity Real Property List) / Principal Judgment (final Disposition)
Outcome
Judgment for plaintiffs against defendants in the sum of $2,104,111.70 plus interest; Amended Statement of Cross-Claim dismissed with costs.
Legal Topics
Leases and Tenancies, Rent and Outgoings, COVID 19 Commercial Leasing Principles, Good Faith Negotiations, Australian Consumer Law, Misleading and Deceptive Conduct, Constructive Trust, Estoppel, Unconscionable Conduct, Liquor Licence Disposition
Equity Commercial Law Real Property Consumer Law Leases and Tenancies Rent and Outgoings COVID 19 Commercial Leasing Principles Good Faith Negotiations +6 more

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Parties

Perpetual Trustee Company Limited ACN 000 001 007

Plaintiff/cross Defendant

Eastern Pursuits Pty Limited ACN 100 738 092

First Defendant/first Cross Claimant

Andrew Lazarus

Second Defendant/second Cross Claimant

Colin Parras

Third Defendant/third Cross Claimant

Procedural Posture

Commercial Lease Dispute (equity Real Property List) / Principal Judgment (final Disposition)

Legal Issues

  1. 1 Whether the landlord (Perpetual) is barred from recovering rental arrears due to alleged failure to negotiate in good faith under COVID-19 regulations
  2. 2 Whether the lessee (Eastern) forfeited protections for failing to pay rent
  3. 3 Whether Perpetual's conduct regarding the liquor licence constituted misleading and deceptive conduct, unconscionable conduct, or gave rise to an estoppel or constructive trust

Ratio Decidendi

Perpetual engaged in good faith negotiations in accordance with the COVID-19 regulations and National Code, was not barred from recovering arrears; Eastern failed to provide sufficient information, failed to pay any rent, and forfeited regulatory protections. No common intention was established regarding the liquor licence beyond the explicit lease terms; Perpetual did not engage in misleading or deceptive conduct, unconscionable conduct, nor was estopped or required to acknowledge any arrangement. Eastern's cross-claim failed. Judgment for Perpetual for arrears and interest.

Court Disposition

Judgment for plaintiffs against defendants in the sum of $2,104,111.70 plus interest; Amended Statement of Cross-Claim dismissed with costs.

Orders

  • Order the first, second and third defendants to pay the plaintiff the sum of $2,104,111.70.
  • Order the first, second and third defendants to pay interest on the sum from 28 June 2021 to the date of judgment pursuant to s 100 Civil Procedure Act 2005 (NSW).