Lagerbar Balmain Pty Ltd v Riverview Hotel Balmain Pty Ltd [2006] NSWSC 1433

Lagerbar Balmain Pty Ltd v Riverview Hotel Balmain Pty Ltd [2006] NSWSC 1433

The Defendant's report, although served late and alleged not to comply with UCPR Pt 31 r 23, was capable of being an expert's report for the purposes of the parties' private interim rent abatement agreement. The agreement expressly contemplated late service of one report. The Plaintiff was not justified in refusing to pay rent according to paragraphs 2 and 3 of that agreement, and because the Plaintiff did not comply with the agreement it was not just to hold the Defendant to its undertaking in paragraph 5.

Jurisdiction
Australia
Judgment Date
15 December 2006
Procedural Posture
Equity Division Proceedings Concerning an Undertaking in Consent Orders and an Interim Rent Abatement Agreement / Defendant's Interlocutory Notice of Motion Seeking Release From an Undertaking
Outcome
Defendant's undertaking released; Plaintiff to pay costs of the motion; proceedings stood over to the Registrar's list.
Legal Topics
['undertaking to Court' 'consent Orders' 'expert Reports' 'abatement of Rent' 'interlocutory Relief']
['equity' 'civil Procedure' 'leases'] ['undertaking to Court' 'consent Orders' 'expert Reports' 'abatement of Rent' 'interlocutory Relief']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning an Undertaking in Consent Orders and an Interim Rent Abatement Agreement / Defendant's Interlocutory Notice of Motion Seeking Release From an Undertaking

Legal Issues

  1. 1 ["Whether the Plaintiff unreasonably refused to comply with the interim agreement between the parties by refusing to pay rent calculated by reference to the average of the two experts' figures." 'Whether the Defendant should be released from its undertaking not to seek to determine the lease or enter into possession of the premises.' "Whether the Defendant's report was an expert's report for the purposes of the parties' private agreement despite alleged non-compliance with UCPR Pt 31 r 23(1), (3) and (4)."]

Ratio Decidendi

The Defendant's report, although served late and alleged not to comply with UCPR Pt 31 r 23, was capable of being an expert's report for the purposes of the parties' private interim rent abatement agreement. The agreement expressly contemplated late service of one report. The Plaintiff was not justified in refusing to pay rent according to paragraphs 2 and 3 of that agreement, and because the Plaintiff did not comply with the agreement it was not just to hold the Defendant to its undertaking in paragraph 5.

Court Disposition

Defendant's undertaking released; Plaintiff to pay costs of the motion; proceedings stood over to the Registrar's list.

Orders

  • ["The proceedings are stood over to the Registrar's list in the first instance on 1 February 2007." 'Costs of the motion are to be paid by the Plaintiff.' 'The Defendant is released from the undertaking contained in paragraph 5 of the Consent Orders made on 23 October 2006.']