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

Supreme Court New South Wales

Medium Neutral Citation: Brown v The Stables Perisher Management Pty Ltd [2021] NSWSC 1688 Hearing dates: 22, 23, 24, 27 September 2021 (Further submissions on 5 October 2021) Date of orders: 21 December 2021 Decision date: 21 December 2021 Jurisdiction: Equity - Real Property List Before: Bell P Decision: 1. 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. 2. Declare that no legally effective Notices of Default were issued to the Plaintiffs by the Defendant. 3. Declare that the Notices of Termination served on the Plaintiffs by the Defendant are invalid and of no effect. 4. Declare that, on the proper construction of the Management Agreement, the Defendant was not entitled to charge the Plaintiffs an "Allowable Deductions" fee or to charge a further 25% of Monthly Gross Receipts in addition to the remuneration fee payable under cl 4(a) of the Management Agreement. 5. Order that the Defendant is bound to account to the Plaintiffs for their respective incomes and expenses in relation to Apartments 26 and 9-1. 6. Parties to file and serve any written submissions on costs, not exceeding 5 pages, by 4.00pm on 2 February with any submissions in reply by 4.00pm on 4 February 2022. Catchwords: EQUITY – unconscionable conduct – where sublessor issued notices of default and purported to terminate subleases – whether amounts said to be owing to sublessor were in fact owing – whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees LEASES AND TENANCIES – subleases – default and termination – whether notices of default were valid – whether termination of subleases was valid – whether amounts said to be owing to sublessor were in fact owing - whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees Legislation Cited: Conveyancing Act 1919 (NSW) ss 66T, 66W National Parks and Wildlife Act 1974 (NSW) Cases Cited: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Gardiner v Orchard (1910) 10 CLR 722; [1910] HCA 18 Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd (1972) 128 CLR 529; [1972] HCA 36 Greaves v Wilson (1858) 25 Beav 290; 53 ER 647 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kay v Playup Australia Pty Ltd [2020] NSWCA 33; (2020) 19 BPR 40,037 Lawrence v Ciantar [2020] NSWCA 89 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 Stern v McArthur (1988) 165 CLR 489; [1988] HCA 51 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Principal judgment Parties: Karen Brown (First Plaintiff) Jake Brown (Second Plaintiff) Sam Brown (Third Plaintiff) The Stables Perisher Management Pty Ltd (Defendant) Representation: Counsel: