CBS Leasing Pty Ltd v Imseis [2020] NSWSC 1408

CBS Leasing Pty Ltd v Imseis [2020] NSWSC 1408

The Landlord's Works Completion Date remained 15 January 2018 because the April 2018 correspondence extended only the Landlord's Works Sunset Date. Despite the absence of formal handover procedures, CBS accepted Handover on about 5 June 2018 by commencing fit-out works and receiving keys, so liquidated damages were payable only from 15 January 2018 to 5 June 2018. CBS did not prove breach or loss concerning the second access ramp or telephones. The defendants complied with cl 4.5 in full on 27 April 2019 when updated plans required for service approval were provided, so the Lease Commencement Date was 22 June 2019. Pham Property's unqualified statements that the property had CC approval...

Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Equity Proceedings Concerning an Agreement for Lease, Damages, Specific Performance, and a Cross Claim Under the Australian Consumer Law / Principal Judgment After Hearing
Outcome
CBS is entitled to judgment for liquidated damages and specific performance; the cross-claim against Pham Property is dismissed.
Legal Topics
['agreement for Lease' 'breach of Agreement for Lease' "landlord's Works" 'practical Completion and Handover' 'liquidated Damages' 'specific Performance' 'misleading or Deceptive Conduct' 'false or Misleading Representations Concerning Land' 'australian Consumer Law Damages' 'causation of Loss']
['land Law' 'consumer Law' 'equity'] ['agreement for Lease' 'breach of Agreement for Lease' "landlord's Works" 'practical Completion and Handover' 'liquidated Damages' 'specific Performance' 'misleading or Deceptive Conduct' 'false or Misleading Representations Concerning Land' 'australian Consumer Law Damages' 'causation of Loss']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Agreement for Lease, Damages, Specific Performance, and a Cross Claim Under the Australian Consumer Law / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Landlord's Works Completion Date under the Agreement for Lease was varied from 15 January 2018 to 15 August 2018." 'When Handover occurred for the purpose of calculating liquidated damages under cl 4.6 of the Agreement for Lease.' "Whether CBS was entitled to damages for the defendants' failure to construct a second access ramp or install telephones." 'What Lease Commencement Date should apply for the lease to be granted under the Agreement for Lease.' "Whether Pham Property's statements that the property had DA and CC approval or that a Construction Certificate was approved were misleading or deceptive or false or misleading under ss 18 and 30 of the Australian Consumer Law." "Whether Ebrahim and Rima Imseis proved loss or damage because of Pham Property's contravening conduct for the purposes of s 236 of the Australian Consumer Law."]

Ratio Decidendi

The Landlord's Works Completion Date remained 15 January 2018 because the April 2018 correspondence extended only the Landlord's Works Sunset Date. Despite the absence of formal handover procedures, CBS accepted Handover on about 5 June 2018 by commencing fit-out works and receiving keys, so liquidated damages were payable only from 15 January 2018 to 5 June 2018. CBS did not prove breach or loss concerning the second access ramp or telephones. The defendants complied with cl 4.5 in full on 27 April 2019 when updated plans required for service approval were provided, so the Lease Commencement Date was 22 June 2019. Pham Property's unqualified statements that the property had CC approval...

Court Disposition

CBS is entitled to judgment for liquidated damages and specific performance; the cross-claim against Pham Property is dismissed.

Orders

  • ['Judgment for CBS in the amount of $105,041.66, together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 6 June 2018 to the date of judgment.' 'Orders in the nature of specific performance requiring execution of a lease in accordance with the Agreement for Lease with a Commencement Date...