Perpetual Trustee Company Limited v Eastern Pursuits Pty Limited [2023] NSWSC 813

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited v Eastern Pursuits Pty Limited [2023] NSWSC 813 Hearing dates: 26 – 28 June 2023 Decision date: 13 July 2023 Jurisdiction: Equity - Real Property List Before: Peden J Decision: Judgment for the plaintiffs against the defendants in the sum of $2,104,111.70 plus interest; the Amended Statement of Cross-Claim is dismissed, with costs. See [154]. Catchwords: LEASES AND TENANCIES — Rent and outgoings — Failure to pay — Where lessee under commercial lease operated hotel and nightclub — Where operation of hotel affected by COVID-19 pandemic — Where COVID-19 regulations required landlords and lessees to negotiate in good faith — Whether landlord and lessee negotiated in good faith — Where lessee did not pay any rent at all — Where landlord made several offers and concessions — Where landlord negotiated in good faith — Where rental arrears recoverable CONSUMER LAW — Where landlord had contractual right to purchase lessee's liquor licence — Where lessee claims to avoid rental arrears by sale to prospective purchaser — Whether there was a common intention that landlord would not purchase licence — Whether landlord's failure to acknowledge a common intention constitutes misleading and deceptive conduct — Whether landlord's failure to acknowledge a common intention is unconscionable conduct — Whether landlord's failure to acknowledge a common intention gives rise to a common intention constructive trust or estoppel — Where no common intention established — Where common intention inconsistent with the express terms of the lease agreement — Where no obligation on landlord to clarify its intention under the contract — Where lessee did not otherwise seek rectification Legislation Cited: Australian Consumer Law ss 18, 20, 237, 243 Civil Procedure Act 2005 (NSW) s 100 Conveyancing (General) Regulation 2018 (NSW) Retail Leases Act 1994 (NSW) s 88(1) Liquor Act 2007 (NSW) s 61 Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) Cases Cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 Alamdo Holdings Pty Ltd v Croc's Franchising Pty Ltd (No 2) [2023] NSWSC 60 Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 Darzi Group Pty Ltd v Nolde Pty Ltd (No 2) [2022] NSWSC 643 Galati v Deans [2023] NSWCA 13 Halton Pty Ltd v Stewart Bros Drilling Contractors Pty Ltd (1992) ATPR 41-158 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 Lake Cumbeline Pty Ltd v Effem Foods Pty Limited [1995] FCA 451 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Mander Forklift Pty Ltd v Dairy Farmers Cooperative (Supreme Court (NSW), Cole J, 15 March 1990, unrep) Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Strzelecki Holdings Pty Limited v Cable Sands Pty Limited (2010) 41 WAR 318 United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 Texts Cited: National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles During COVID-19 Category: Principal judgment Parties: Perpetual Trustee Company Limited ACN 000 001 007 (Plaintiff/Cross-Defendant) Eastern Pursuits Pty Limited ACN 100 738 092 (First Defendant/First Cross-Claimant) Andrew Lazarus (Second Defendant/Second Cross-Claimant) Colin Parras (Third Defendant/Third Cross-Claimant) Representation: Counsel: A Fernon SC and G Farland (Plaintiffs/Cross-Defendants) C J Birch SC and R L Gall (Defendants/Cross-Claimants)