711 Hogben Pty Ltd v Anthony Tadros [2018] NSWSC 628

711 Hogben Pty Ltd v Anthony Tadros [2018] NSWSC 628

The Landlord was and remained in breach of the agreement for lease by refusing to bring the premises into conformity with the Plan. The issue of certification, which was central to the damages claim, was speculative and could more fairly be addressed after the specific performance question was determined. Because the building work was defined by the Plan, the Tenants had a substantial interest in performance under a lease with a potential term of nearly thirty years, and the Landlord did not contend that damages were an adequate remedy, a decree of specific performance should be made.

Jurisdiction
Australia
Judgment Date
10 May 2018
Procedural Posture
Equity Commercial List; Landlord and Tenant; Building and Construction Law / Separate Question Under Part 28 of the Uniform Civil Procedure Rules 2005 (nsw) as to Whether the Tenants Should Have a Decree That the Landlord Construct the Premises in Conformity With the Plan
Outcome
Decree for specific performance.
Legal Topics
['agreement for Lease' 'specific Performance' 'building Work' 'expert Determination' 'occupation Certificate' 'service Approval' 'loss of Profits']
['landlord and Tenant' 'building and Construction Law' 'equity' 'contract'] ['agreement for Lease' 'specific Performance' 'building Work' 'expert Determination' 'occupation Certificate' 'service Approval' 'loss of Profits']

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Procedural Posture

Equity Commercial List; Landlord and Tenant; Building and Construction Law / Separate Question Under Part 28 of the Uniform Civil Procedure Rules 2005 (nsw) as to Whether the Tenants Should Have a Decree That the Landlord Construct the Premises in Conformity With the Plan

Legal Issues

  1. 1 ['Whether the Tenants were entitled to a decree of specific performance requiring the Landlord to carry out work necessary to bring the premises into conformity with the Plan.' 'Whether the question of specific performance should be determined before the remaining questions in the proceedings, including damages for alleged lost profits.' 'Whether, if the premises were altered to conform with the Plan, certification for operation of a child care centre would be achieved.']

Ratio Decidendi

The Landlord was and remained in breach of the agreement for lease by refusing to bring the premises into conformity with the Plan. The issue of certification, which was central to the damages claim, was speculative and could more fairly be addressed after the specific performance question was determined. Because the building work was defined by the Plan, the Tenants had a substantial interest in performance under a lease with a potential term of nearly thirty years, and the Landlord did not contend that damages were an adequate remedy, a decree of specific performance should be made.

Court Disposition

Decree for specific performance.

Orders

  • ['Pursuant to Part 28 of the Uniform Civil Procedure Rules 2005 (NSW) Rule 28.2, the Court orders that there be tried separately from all other questions in the proceedings whether the Tenants should have a decree that the Landlord construct the premises in conformity with the Plan.' 'The Court will decree specific...