V.G DNEPR Pty Ltd and Anor v MVI Industries Pty Ltd [2024] NSWDC 455

V.G DNEPR Pty Ltd and Anor v MVI Industries Pty Ltd [2024] NSWDC 455

Safe Removalists complied with its make good obligations except for specific deficiencies proved, and MVI was only entitled to the cost of those works actually rectified and paid for ($27,026). Excess drawdown on the bank guarantee ($29,584.12) must be repaid, and MVI's cross-claim for further amounts without proof of diminution in value fails under s 133A of the Conveyancing Act.

Parties
Plaintiff/first Cross Defendant: V.G DNEPR Pty Ltd; Second Cross Defendant: Vitaliy Gorb; Defendant/cross Claimant: MVI Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
27 September 2024
Procedural Posture
Civil / Principal Judgment
Outcome
judgment for plaintiff, cross-claim dismissed
Legal Topics
Make Good Obligations, Construction of Lease Clauses, Statutory Limitation of Damages, Onuses in Breach of Lease, Commercial Leases, Cross Claims in Tenancy Disputes
Leases and Tenancies Contracts Make Good Obligations Construction of Lease Clauses Statutory Limitation of Damages Onuses in Breach of Lease Commercial Leases Cross Claims in Tenancy Disputes

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Parties

V.G DNEPR Pty Ltd

Plaintiff/first Cross Defendant

Vitaliy Gorb

Second Cross Defendant

MVI Industries Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether tenant complied with make good obligations under the Lease and Settlement Deed
  2. 2 Proper construction of make good clauses
  3. 3 Does s 133A of Conveyancing Act 1919 (NSW) apply to make good obligations under the Settlement Deed

Ratio Decidendi

Safe Removalists complied with its make good obligations except for specific deficiencies proved, and MVI was only entitled to the cost of those works actually rectified and paid for ($27,026). Excess drawdown on the bank guarantee ($29,584.12) must be repaid, and MVI's cross-claim for further amounts without proof of diminution in value fails under s 133A of the Conveyancing Act.

Court Disposition

judgment for plaintiff, cross-claim dismissed

Orders

  • Judgment for the Plaintiff in the sum of $32,671.53, inclusive of interest at Court rates from 16 June 2023 until the date of entry of judgment.
  • Order the cross-claim be dismissed.