Spotlight Pty Ltd v Fatseas Investments Pty Ltd [2020] NSWCA 132

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Spotlight Pty Ltd v Fatseas Investments Pty Ltd [2020] NSWCA 132 Hearing dates: 7 May 2020 Decision date: 03 July 2020 Before: Gleeson JA at [1] White JA at [126] Emmett AJA at [127] Decision: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal. (3) Cross-appeal dismissed. (4) Refuse leave to the cross-appellant to amend the amended second cross-claim. (5) Cross-appellant to pay the cross-respondent's costs of the cross-appeal, including the costs of the application to amend the amended second cross-claim. (6) The costs orders referred to in orders (2) and (5) above are to be set-off. (7) Order (1) made by the primary judge on 27 February 2020 is supplemented by the following orders: (1) Spotlight Pty Ltd pay Fatseas Pty Ltd the amount of $104,923, being interest on the judgment sum of $497,769 under s 100 of the Civil Procedure Act 2005 (NSW) for the period 23 November 2015 to 27 August 2019. (2) This order shall take effect on 27 August 2019. Catchwords: AMENDMENT – where application to amend cross-claim on appeal to add liquidated claim for breach of covenant to pay rent – where no leave sought to amend cross-claim at trial – whether cross-respondent bound by conduct of its case at trial – amendment application refused CONTRACTS – registered lease – where leased premises damaged as a result of water overflowing from box gutters on roof – where lessee covenanted to maintain and repair leased premises and to regularly clean and clear gutters, drains and downpipes – where installation of decorative grates and gauze in box gutters was a cause of damage to leased premises – whether the installation of grates and gauze constituted a breach of lessee's covenants – whether lessor entitled to indemnity EVIDENCE – whether primary judge erred in finding that the "only available inference" on the evidence was that the lessee installed grates and gauze in box gutters – where open to Court of Appeal to review evidence and make appropriate finding as to the most probable inference JUDGMENTS AND ORDERS – interest – whether lessor entitled to contractual rate of interest on component of judgment sum referable to unliquidated claim for damages or indemnity for breaches of lease – whether primary judge's discretion miscarried in choice of date from which prejudgment interest would accrue on the judgment sum – Civil Procedure Act 2005 (NSW) s 100 Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Limitation Act 1969 (NSW), ss 16, 66 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 36.4(3), 42.1 Cases Cited: Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Arnold v Forsythe [2012] NSWCA 18 Bennett v Jones [1977] 2 NSWLR 355 Canty v Paperlinx Australia Pty Ltd [2014] NSWCA 309 Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382 Commissioner of Stamp Duties (NSW) v Atwill (1972) 126 CLR 655 Consolidated Lawyers Pty Ltd v Abu Mahmoud [2016] NSWCA 4 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Guild & Co v Conrad [1894] 2 QB 885 H K Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v Lithgow City Council [2008] NSWCA 312 Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 Merritt Cairns Constructions Pty Ltd v Wulguru Pty Ltd [1995] QCA 273; [1995] 2 Qd R 521 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1; [1909] HCA 25 Simonius Vischer v Holt & Thompson [1979] 2 NSLWR 322 Sutton v Grey [1894] 1 QB 285 Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Wentworth v Wentworth [1996] NSWCA 553 Category: Principal judgment Parties: Spotlight Pty Ltd (Appellant) Fatseas Investments Pty Ltd (Respondent) Representation: Counsel: D Lloyd / M O'Brien (Appellant) M T McCulloch SC / R P V Carey (Respondent)