Jelin Pty Ltd v Murdoch Pty Ltd [1984] FCA 144

apnaree are

Trade Practices - lease of shop in centre - allegations of misleading and deceptive conduct - preliminary issue - accord and satisfaction - agreement by applicant to "withdraw" proceedings - Meaning of "withdraw" - whether accord and satisfaction by

exchange of promise or performance — failure to establish accord

and satisfaction

JELIN PTY. LTD. v. MURDOCH PTY. LTD.

No. WA G26 of 1983

TOOHEY J. PERTH -~ 31 MAY 1984

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA G26 of 1983

~~ we uewn

BETWEEN:

JELIN PTY. LTD. Applicant

and

MURDOCH PTY. LTD.

Respondent

PROPOSED ORDER

JUDGE MAKING ORDER : Toohey J. DATE OF ORDER : 31 May 1984 WHERE MADE 2 Perth

THE COURT:

1. Declares that the respondent has fa1rled to establish the

matters pleaded in paragraph 9 of its defence.

2. Orders that paragraph 9 of the respondent's defence be

struck out.

3. Orders that the costs of the trial of the preliminary

1ssue arising from paragraph 9 of the respondent's

defence be reserved.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA G26 of 1983

BETWEEN:

JELIN pry. LID. Applicant

and

MURDOCH PTY. LTD.

Respondent

CORAM : TOOHEY J.

31 May 1984 REASONS FOR JUDGMENT

The respondent is the owner of a bia shopping centre, known as Mount Hawthorn Plaza. in Scarborough Beach Road, Mt.

Hawthorn.

By an agreement in writing dated 3 December 1981 the respondent leased toa the applicant Shop 6 in the shopping centre for a term of 5 vears as from 10 November 1981. The annual rent was $15,527.52 payable by monthly instalments of $1,293.96. In addition the applicant was obliged to pay a percentage of the

"aaqgregate variable outgoings", a term exhaustively defined in the

First Schedule to the lease but meaning in effect all monies

ae ne

expended by the respondent in the maintenance and operation of the