AUSTEUR PTY LIMITED v VLAHOS [1996] NSWCA 31

AUSTEUR PTY LIMITED v VLAHOS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 11 March 1996

[1996] NSWCA 31

Sheller JA. The claimants, Sam Vlahos and Olga Vlahos, apply for an order that the opponent, Austeur Pty Limited, give security for the claimants" costs as respondents to the opponent's appeal from decisions of Abadee J and Master Greenwood in proceedings instituted by the claimants.

The claimants sought possession of a property known as 209 Oxford Street Bondi Junction, which, at relevant times, they owned, from the opponent which was the lessee. The claimants also claimed amounts alleged to be owing for rent, rates, land tax and legal costs and disbursements. On 11 September 1995 Master Greenwood gave judgment for possession and judgment in the sum of $44,032.76 for amounts owing under the lease up until the date of forfeiture. Master Greenwood struck out the opponent's defence and cross claim. In its defence the opponent sought to rely upon a set off and in its cross claim sought to recover damages for an alleged failure by the claimants in breach of acovenant in the lease to keep the leased premises in reasonable order and condition.

The background of the litigation and what happened at the hearing is as follows. The opponent carried on a restaurant and nightclub business known as 'Fred' at the leased premises. It fell behind with the rent. The basis of its defence and cross claim was that the state of the premises was such that by mid-April 1995 it was forced to close down. On 30 May 1995 Master Greenwood ordered that the opponent file and serve all affidavits and any expert reports on which it intended to rely by 29 June 1995. This order had not been complied with as late as 10 July 1995 when the time for compliance was extended for a further fourteen days. At some point leave was given to the opponent to file its cross claim.