Ragi v Kiwi [2005] NSWSC 798

New South Wales Supreme Court

CITATION : Ragi v Kiwi [2005] NSWSC 798

HEARING DATE(S) : 04/08/2005

JUDGMENT DATE : 4 August 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 27

CATCHWORDS : Corporations Law. Application to set aside demand under s459Gof the Corporations Act. Consideratrion of whether breaches of the Retail Leases Act led to a debt or a claim for damages. Demand set aside.

PARTIES : Ragi Pty Limited v Kiwi Munchies Pty Limited

FILE NUMBER(S) : SC 2007/2005

Mr R. Lovas for plaintiff COUNSEL : Mr S.A. Wells for defendant

Phang Legal Pty Limited for plaintiff SOLICITORS : KM Legal for defendant

LOWER COURT JURISDICTION :

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 4 AUGUST 2005

2007/05 - RAGI PTY LIMITED v KIWI MUNCHIES PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application under s 459G of the Corporations Act to set aside a statutory demand served by the defendant on the plaintiff. The demand was dated 28 February 2005 and claimed $13,944, being described as outgoings paid by the defendant as lessee to the plaintiff as lessor in contravention of the Retail Leases Act. BACKGROUND FACTS 2 On 13 March 2001 Ms Paras and Ms Ualesi, representatives of the defendant, met Mr Ross, the letting agent of the plaintiff, at the subject premises. Later that day Ms Paras faxed Mr Ross with a suggestion that a lease be drawn in a certain way. Ms Paras expressly agreed to pay the outgoings in addition to the rent. 3 The next day, Ms Paras again faxed Mr Ross and said that "after careful consideration we are prepared to pay $500 per week plus GST plus outgoings (which I understand are approximately $448 per month)." 4 On 6 April 2001, the parties entered into a written lease. Under the heading "Outgoings" the lease provided for the payment by the defendant to the plaintiff of a fixed sum of $498 per month. 5 The relevant clause of the lease front page was as follows: "(c) The percentage of outgoings referred to in clause 25A or the percentages of increases in outgoings referred to in clause 25B is $498 per month." 6 The relevant clauses in the body of the lease were as follows: "25A. By way of further rent the Lessee will pay to the Lessor on demand an amount equal to the percentage stated in clause 2(c) of the outgoings (as defined in clause 26)