Brown v The Stables Perisher Management Pty Ltd [2021] NSWSC 1688

Invoices 735 and 770, apart from de minimis amounts in Invoice 735, comprised charges not legally or factually owing under the relevant subleases or Management Agreements. The Defendant had no entitlement on the proper construction of the Management Agreement to charge an additional 25% of Monthly Gross Receipts as an Allowable Deductions fee in addition to the cl 4(a) remuneration fee, and many charges were unsupported, retrospective, unrelated to Apartment 26, or inconsistent with established arrangements and representations. Because the asserted monetary defaults were not established, the Notices of Default were not legally effective and the Notices of Termination were invalid. The...

Jurisdiction: Australia
Judgment Date: 21 December 2021
Procedural Posture: Equity Real Property List Proceedings Concerning the Validity of Purported Termination of Subleases and Related Management Agreement Charges / Principal Judgment After Hearing
Outcome: Judgment for the Plaintiffs; declarations and accounting ordered; costs submissions reserved.
Legal Topics: ['unconscionable Conduct' 'sublease Default and Termination' 'relief Against Forfeiture' 'construction of Management Agreement' 'improper Purpose in Exercise of Termination Power' 'estoppel' 'accounting for Apartment Income and Expenses']

['equity' 'real Property' 'leases and Tenancies' 'contract'] ['unconscionable Conduct' 'sublease Default and Termination' 'relief Against Forfeiture' 'construction of Management Agreement' 'improper Purpose in Exercise of Termination Power' 'estoppel' 'accounting for Apartment Income and Expenses']

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Procedural Posture

Equity Real Property List Proceedings Concerning the Validity of Purported Termination of Subleases and Related Management Agreement Charges / Principal Judgment After Hearing

Legal Issues

1 ['What amount, if any, the Plaintiffs owed to the Defendant in respect of monies due under the subleases for Apartment 26 and Apartment 9-1.' 'Whether the Defendant was estopped from claiming the alleged cost of renovations to Apartment 28 after that apartment had previously been sold without that cost being claimed.' 'Whether the renovation costs were satisfied, set off or released by work undertaken for the Defendant by Shane Brown without remuneration under an agreement with the Defendant.' 'Whether the Defendant was entitled to selling agent fees for sale of Apartment 28.' 'Whether costs and expenses the subject of invoices 735 and 770 were correctly calculated and in accordance with the subleases.' "Whether the Defendant's management of records and accounts and representations as to the state of those accounts were relied on by the Plaintiffs to their detriment." 'Whether the power of termination and re-entry was used unconscionably or for an improper purpose.' "Whether the Defendant validly terminated the subleases for the Plaintiffs' apartments." 'Whether relief against forfeiture should be granted and on what terms.']

Ratio Decidendi

Court Disposition

Judgment for the Plaintiffs; declarations and accounting ordered; costs submissions reserved.

Orders

['Declare that the amounts said to be owing to the Defendant by the Plaintiffs pursuant to invoices 735 and 770 respectively were not due and owing.' 'Declare that no legally effective Notices of Default were issued to the Plaintiffs by the Defendant.' 'Declare that the Notices of Termination served on the...