Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163

Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163

The appeal failed because the primary judge made no appellable error in refusing the late renewed audio-visual link application, no objection had been taken to Mr Skipper's expert evidence, the finding that Chilis Penrith abandoned the premises was open on the evidence, Big Country's acts in securing the premises, arranging inspections, seeking a new tenant and preserving the liquor licence were authorised by the lease and did not objectively evince an intention no longer to be bound by it, and Big Country took reasonable steps to mitigate its loss.

Jurisdiction
Australia
Judgment Date
19 July 2016
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity Division – Commercial List / Appeal Against Judgment for the Respondent Landlord Against Guarantors of a Lease
Outcome
Appeal dismissed with costs.
Legal Topics
['long Term Lease' 'abandonment of Premises' 'repudiation of Lease' 'surrender at Law' 'wrongful Retaking of Possession' 'mitigation of Loss' 'overseas Witness Evidence by Audio Visual Link' 'expert Evidence']
['landlord and Tenant' 'civil Procedure' 'contract Law' 'evidence'] ['long Term Lease' 'abandonment of Premises' 'repudiation of Lease' 'surrender at Law' 'wrongful Retaking of Possession' 'mitigation of Loss' 'overseas Witness Evidence by Audio Visual Link' 'expert Evidence']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity Division – Commercial List / Appeal Against Judgment for the Respondent Landlord Against Guarantors of a Lease

Legal Issues

  1. 1 ['Whether the primary judge erred in refusing the late renewed application for Mr White to give evidence by audio-visual link from the United Kingdom and in refusing to admit his affidavit.' 'Whether the primary judge erred in allowing Mr Skipper to give expert evidence.' 'Whether Chilis Penrith had abandoned the premises between 11 and 14 March 2008 and thereby repudiated the lease.' 'Whether Big Country wrongfully retook possession or repudiated the lease by securing the premises, controlling access, showing prospective tenants through the premises and transferring the liquor licence.' 'Whether Big Country took reasonable steps to mitigate its damages when re-leasing the premises.']

Ratio Decidendi

The appeal failed because the primary judge made no appellable error in refusing the late renewed audio-visual link application, no objection had been taken to Mr Skipper's expert evidence, the finding that Chilis Penrith abandoned the premises was open on the evidence, Big Country's acts in securing the premises, arranging inspections, seeking a new tenant and preserving the liquor licence were authorised by the lease and did not objectively evince an intention no longer to be bound by it, and Big Country took reasonable steps to mitigate its loss.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "The appellants should pay Big Country's costs of the appeal."]