V.G DNEPR Pty Ltd and Anor v MVI Industries Pty Ltd [2024] NSWDC 455

District Court New South Wales

Medium Neutral Citation: V.G DNEPR Pty Ltd and Anor v MVI Industries Pty Ltd [2024] NSWDC 455 Hearing dates: 17-18 September 2024 Date of orders: 27 September 2024 Decision date: 27 September 2024 Jurisdiction: Civil Before: Newlinds SC DCJ Decision: (1) Judgment for the Plaintiff in the sum of $32,671.53, inclusive of interest at the Court rates from 16 June 2023 until the date of entry of judgment. (2) Order the cross-claim be dismissed. (3) I will hear the parties as to interest and an appropriate costs order. Catchwords: LEASES AND TENANCIES — Alleged failure to make good in accordance with terms of a lease – Lease term – Proper construction of make good clause – No fair wear and tear exception – Onus of proof as to any diminution of property for the purpose of s 133A of Conveyancing Act – Proper construction of s 133A of Conveyancing Act – Applies to make good obligations created by agreements that do not themselves create an interest in land Legislation Cited: Conveyancing Act 1919 (NSW) s 133A Cases Cited: Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183 Espir v Basil Street Hotel Ltd [1936] 3 All ER 91 Holus Bolus Pty Ltd v Wicko Pty Ltd [2012] NSWSC 497 James v Hutton [1950] 1 KB 9; [1949] 2 All ER 243 Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 Texts Cited: Annotated Conveyancing and Real Property Legislation New South Wales (3rd ed, 2003, Butterworths) Commercial Leases in Australia (5th ed, 2008, LawBook Co) Category: Principal judgment Parties: V.G DNEPR Pty Ltd (Plaintiff/First Cross Defendant) Vitaliy Gorb (Second Cross Defendant)