H.T.H. Nominees Pty Ltd atf Hudson Property Trust v Secure Parking Pty Ltd [2022] NSWSC 931

Supreme Court New South Wales

Medium Neutral Citation: H.T.H. Nominees Pty Ltd atf Hudson Property Trust v Secure Parking Pty Ltd [2022] NSWSC 931 Hearing dates: 6-7 June 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Equity Before: Darke J Decision: Judgments to be entered in accordance with [137] and [138]. Catchwords: LAND LAW – lease – lease of a car park – construction of lease – dispute regarding Lessee's payment of rent – where cl 21.1 of the lease entitled the Lessee to a reduction in Base Rent where its business was materially adversely affected by reason of any law, policy or action of an authority – where Lessee invoked cl 21.1 to claim reduction in rent due to effect of COVID-19 Public Health Orders – where Lessor refused to recognise Lessee's entitlement to reduction in rent under cl 21.1 – where Lessee tendered payments of reduced rent in good faith, though calculated incorrectly – whether payment of reduced rent amounted to breach of the lease or repudiation of the lease – whether dispute resolution mechanism in the lease prevented the Lessor from terminating the lease until procedure had been complied with – held that the Lessee did not breach the lease or repudiate it by paying reduced rent in good faith – held that Lessor was not entitled to terminate the lease in any event until dispute resolution process had been complied with – Lessor held not to be entitled to loss of bargain damages CONTRACTS – repudiation – where Lessor re-entered demised premises for Lessee's alleged failure to pay rent in accordance with the lease – where Lessor not entitled to re-enter and terminate lease – where conduct of Lessor amounted to a repudiation of the lease – Lessee held to be entitled to accept repudiation and thereby terminate the lease – Lessor entitled to recover amount of rent outstanding as at date of termination of lease Legislation Cited: Civil Procedure Act 2005 (NSW), s 21 Public Health Act 2010 (NSW) Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 2) 2020 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (NSW) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50 HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 James Adam Pty Ltd v Fobeza Pty Ltd (2020) 103 NSWLR 850; [2020] NSWCA 311 Johnson Matthey Ltd v A C Rochester Overseas Corp (1990) 23 NSWLR 190 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277 Category: Principal judgment Parties: H.T.H. Nominees Pty Ltd atf Hudson Property Trust (Plaintiff/Cross-Defendant) Secure Parking Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr D R Stack (Plaintiff/Cross-Defendant) Mr J Giles SC with Mr N Newton (Defendant/Cross-Claimant)