Sovereign v Bevillesta (No.2) [2002] NSWSC 7

New South Wales Supreme Court

CITATION : Sovereign v Bevillesta (No.2) [2002] NSWSC 7 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4486/96 HEARING DATE(S) : 23, 24 and 25 October 2001 (with written submissions dated 5, 16 and 23 November 2001) JUDGMENT DATE : 23 January 2002

PARTIES : Sovereign Motor Inns Pty Ltd (P) Bevillesta Pty Ltd (D) JUDGMENT OF : Austin J

COUNSEL : M Cashion SC with F Donohoe (P) B Walker SC with K Smark (D) SOLICITORS : Laurence & Laurence (P) Robinson Creais )D) CATCHWORDS : CONTRACT - measure of damages when defendant lessor failed to comply with air conditioning covenant and plaintiff lessee's hotel suffered loss of profits - court accepts general statements but not specific assessments by plaintiff's expert - whether evidence sufficient to amount to proof of damages - proper approach for court in assessing damages in such a case Ashcroft v Curtin [1971] 1 WLR 1731 Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177 Commonwealth v Amman Aviation Pty Ltd (1991) 174 CLR 64 CASES CITED : Minchin v Public Curator of Queensland [1965] ALR 91 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 Sovereign v Bevillesta [2001] NSWSC 369 Tate & Lyle Food & Distribution Ltd v Greater London Council [1982] 1 WLR 149 DECISION : See under heading 'Conclusion'

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J WEDNESDAY 23 JANUARY 2002 4486/96 SOVEREIGN MOTOR INNS PTY LTD V BEVILLESTA PTY LTD (NO.2) JUDGMENT

HIS HONOUR: 1 The plaintiff was a lessee, conducting a motel business, of part of a building at 220 Pacific Highway Crows Nest. The defendant was the lessor. The lease, for a term of 10 years commencing on 11 July 1991, with options to renew, contained a covenant by the lessor (clause 7.1 (a)) to use its best endeavours to maintain and service the air-conditioning plant and the elevators to the best of its ability, to ensure that they were kept working and reasonably available for use of the lessee. 2 In proceedings commenced in 1996, the plaintiff sought damages for breach of this covenant, and also for failure by the defendant to maintain the exterior and common parts of the building to a reasonable standard.