Chamberlain Early Learning Centre Pty Limited v Precious 1 Pty Limited in its own right and as trustee for The 4 Chamberlain Holdings Family Trust (No 2) [2017] NSWSC 520

Chamberlain Early Learning Centre Pty Limited v Precious 1 Pty Limited in its own right and as trustee for The 4 Chamberlain Holdings Family Trust (No 2) [2017] NSWSC 520

The Tenant was substantially successful in monetary terms and had been justified in commencing urgent proceedings to resist the Default Notice. The proceedings were closely connected with the Lease and rent obligations, providing a proper basis for legal and equitable set-off of costs ordered in the proceedings against rent once quantified. It was therefore appropriate to make the declarations and restraining orders sought, dismiss the cross-claim, pay the monies in Court to the Tenant's solicitors subject to retention of $30,000 pending agreement or assessment of costs, and order the First Defendant/Cross-Claimant and Second Defendant to pay 80 per cent of the Tenant's costs on the...

Jurisdiction
Australia
Judgment Date
05 May 2017
Procedural Posture
Equity Proceedings Concerning Costs, Set Off and Lease Obligations / On the Papers; Determination of Final Orders and Costs Following Reasons Published on 9 March 2017
Outcome
Orders made for declarations and restraint concerning the Breach Notice, dismissal of the cross-claim, payment out of monies in Court, set-off of costs against rent, and payment by the First and Second Defendants of 80 per cent of the Plaintiff/Cross-Defendant's costs.
Legal Topics
['set Off' 'rent Obligations Under Lease' 'default Notice' 'costs Orders' 'payment of Monies Out of Court' 'cross Claim for Possession']
['costs' 'equity' 'property Law' 'leases'] ['set Off' 'rent Obligations Under Lease' 'default Notice' 'costs Orders' 'payment of Monies Out of Court' 'cross Claim for Possession']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Costs, Set Off and Lease Obligations / On the Papers; Determination of Final Orders and Costs Following Reasons Published on 9 March 2017

Legal Issues

  1. 1 ['Whether the plaintiff tenant was entitled to declarations that it could set off obligations for rent for March, April, May and June 2016 against the Costs Judgment, but not July 2016.' 'Whether the Notice to Remedy Breach of Lease dated 4 July 2016 was valid or effective and capable of being relied upon by the landlord.' 'Whether the tenant was entitled to set off any costs ordered in these proceedings against its rent obligations under the Lease.' 'Whether set-off of costs against rent would be inequitable.' "Whether the defendants should pay the plaintiff's costs, and in what proportion." 'Whether the cross-claim should be dismissed and how the monies paid into Court should be dealt with.']

Ratio Decidendi

The Tenant was substantially successful in monetary terms and had been justified in commencing urgent proceedings to resist the Default Notice. The proceedings were closely connected with the Lease and rent obligations, providing a proper basis for legal and equitable set-off of costs ordered in the proceedings against rent once quantified. It was therefore appropriate to make the declarations and restraining orders sought, dismiss the cross-claim, pay the monies in Court to the Tenant's solicitors subject to retention of $30,000 pending agreement or assessment of costs, and order the First Defendant/Cross-Claimant and Second Defendant to pay 80 per cent of the Tenant's costs on the...

Court Disposition

Orders made for declarations and restraint concerning the Breach Notice, dismissal of the cross-claim, payment out of monies in Court, set-off of costs against rent, and payment by the First and Second Defendants of 80 per cent of the Plaintiff/Cross-Defendant's costs.

Orders

  • ['Declared that the Plaintiff is entitled to set off against its rent obligations to the First Defendant for March, April, May and June 2016 under registered lease dealing number AK120485Y the amount owed under the Local Court Costs Judgment in proceedings No. 2016/77898 in the amount of $93,860.24.' 'Declared that...