BATISTE & 2 ORS v LENIN [2002] NSWSC 233

New South Wales Supreme Court

CITATION : BATISTE & 2 ORS v LENIN [2002] NSWSC 233 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 3548 of 2001 HEARING DATE(S) : 11/3/02 - 15/3/02 & 18/3/02 JUDGMENT DATE : 12 April 2002

Donna Batiste - First Plaintiff PARTIES : Hazaran Pty Ltd - Second Plaintiff Chrysalis Holdings Pty Ltd - Third Plaintiff Michael Petrovic Lenin - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : L.J. Aitken & P. Rogers - Plaintiffs M. Walton S.C. & G. Curtin - Defendant SOLICITORS : Horowitz & Bilinsky - Plaintiffs Phillips Fox - Defendant CATCHWORDS : LANDLORD and TENANT - re-entry - breaches of lessee's covenants to pay rent, construct fire stairs, pay outgoings - cross-claim for possession of Great Northern Hotel Newcastle - numerous issues on meaning and effect of lease - lessee claimed right of recoupment out of rent under Lee-Parker v. Izzett [1971] 1 WLR (Goff J) - covenant for payment of rent provided for payment without deduction - on the construction of the lease the lessor had no obligation to do the works for cost of which lessee claimed recoupment - alleged implied term requiring work to be performed by lessor rejected. TRADE PRACTICES - misleading or deceptive conduct - plaintiff claimed that misleading representations were made in negotiations for lease of Great Northern Hotel Newcastle - on the facts it was found that the representations were not made - consideration of time bar in Fair Trading Act 1987 (NSW) s68(2). Fair Trading Act (New South Wales) 1987 LEGISLATION CITED : Local Government Act 1919 Local Government Act 1993 Ch.7 Conveyancing Act 1919 Wardley Australia Ltd v. Western Australia (1992) 175 CLR 514 Kenny & Good Pty Ltd v. MGICA (1999) 199 CLR 413 Codelfa Construction Pty Ltd v. State Rail Authority of NSW (1982) 149 CLR 337 Lee-Parker v. Izzet [1971] 1WLR 1688 CASES CITED : British Anzani (Felixstowe) Ltd v. International Marine Management (UK) Ltd [1980] 1 QB 137 Sapford v. Fletcher (1792) 4 Term. 511 Debonair Nominees Pty Ltd v. J & K Berry Nominees Pty Ltd (2000) 77 SASR 261 Lambert Pty Ltd v. Papadatos Pty Ltd (1991) 5 ACSR 468 DECISION : Claim under Fair Trading act rejected - cross-claimant recovers possession. See para [114]