R&J Lyons Family Settlement Pty Limited v 155 Macquarie Street Pty Limited [2006] NSWSC 625

R&J Lyons Family Settlement Pty Limited v 155 Macquarie Street Pty Limited [2006] NSWSC 625

Paragraph 2(a)(i) of the defence to cross-claim relied on the same damages or abatement claims that had been settled by payment and released under the settlement deed, and those matters could not operate as a true defence to the rent claim rather than as a cross-claim or set-off. On the proper construction of the settlement deed, the released claims could not remain available as a defence to the cross-claim. Paragraph 2(a)(ii) was not struck out because it would be spent on determination of the cross-claim.

Jurisdiction
Australia
Judgment Date
22 June 2006
Procedural Posture
Contract Proceeding Concerning a Sub Lease, Settlement Deed and Cross Claim for Rent / Trial of Separate Issue on Defence to Cross Claim
Outcome
Parts of defence to cross-claim struck out.
Legal Topics
['settlement Deed and Release' 'defence to Cross Claim' 'set Off and Cross Claim' 'covenant to Pay Rent' 'implied Terms' 'easements for Services']
['contract' 'civil Procedure' 'leases and Tenancies'] ['settlement Deed and Release' 'defence to Cross Claim' 'set Off and Cross Claim' 'covenant to Pay Rent' 'implied Terms' 'easements for Services']

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Procedural Posture

Contract Proceeding Concerning a Sub Lease, Settlement Deed and Cross Claim for Rent / Trial of Separate Issue on Defence to Cross Claim

Legal Issues

  1. 1 ['Whether the cross-defendants were entitled to maintain by way of defence the matters pleaded in paragraph 2(a) of the defence to cross-claim.' 'Upon the true construction of the deed of settlement dated 3 December 2005, whether the cross-defendants released the cross-claimants in respect of any matters in paragraph 2(a)(i) and (ii) of the defence to cross-claim so as to prevent reliance on those paragraphs.']

Ratio Decidendi

Paragraph 2(a)(i) of the defence to cross-claim relied on the same damages or abatement claims that had been settled by payment and released under the settlement deed, and those matters could not operate as a true defence to the rent claim rather than as a cross-claim or set-off. On the proper construction of the settlement deed, the released claims could not remain available as a defence to the cross-claim. Paragraph 2(a)(ii) was not struck out because it would be spent on determination of the cross-claim.

Court Disposition

Parts of defence to cross-claim struck out.

Orders

  • ['The answers to the separate questions be recorded.' 'Paragraph 2(a)(i) of the defence to cross-claim be struck out.' "The cross-defendants pay the cross-claimants' costs of the separate issues."]