GPT Management Ltd & Anor v Spa Heaven Pty Ltd & Ors [2005] NSWSC 1043

New South Wales Supreme Court

CITATION : GPT Management Ltd & Anor v Spa Heaven Pty Ltd & Ors [2005] NSWSC 1043

HEARING DATE(S) : 30 September and 12 October, 2005

JUDGMENT DATE : 12 October 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Palmer J

DECISION : Summary judgment refused; proceedings transferred to Administrative Decisions Tribunal.

CATCHWORDS : RETAIL LEASES ACT - "DISPUTE" - Whether "retail tenancy dispute" is confined to a dispute as to the existence of a legally enforceable claim.

LEGISLATION CITED : - Retail Leases Act 1994 (NSW) - s.3, s.63, s.68, Pt 8 Div 3 s.74(1), s.75

- Wellington v Norwich Union Life Insurance Society Limited [1991] 1 VR 333 CASES CITED : - Lang's Commercial Leasing in Australia - para 4-010, 45-110

GPT Management Ltd and Lend Lease Real Estate Investments Ltd - Plaintiffs Spa Heaven Pty Ltd - First Defendant/First Cross Defendant Dawn Enterprises NSW Pty Ltd - Second Defendant/First Cross Claimant PARTIES : Jacqueline Dawn Eckford - Third Defendant/Second Cross Claimant Catherine Gray - Fourth Defendant/Second Cross Defendant Peter Gray - Third Cross Defendant

FILE NUMBER(S) : SC 50006/05

S.B. Adams (Sol) - Plaintiffs COUNSEL : 1st & 4th Defendants: T.O Bland 2nd & 3rd Defendants: M.P. Cleary

Adams & Co - Plaintiffs SOLICITORS : 2nd & 3rd Defendants: Aubrey Brown Partners

LOWER COURT JURISDICTION :

Ex tempore

Introduction

1 The Plaintiffs were the lessors and the First and Second Defendants were the lessees of retail shop premises in the Erina Fair Shopping Centre at Erina. The Third and Fourth Defendants indemnified the Plaintiffs for any loss occasioned by breach of the obligations of the First and Second Defendants under the lease. 2 On 27 October 2004, the Plaintiffs terminated the lease for non-payment of rent and other moneys said to be due under the lease. On 29 March 2005, the Plaintiffs entered into a lease of the shop with another tenant. 3 By their Amended Summons the Plaintiffs claim judgment against the Defendants in an amount of $200,640, together with interest. That amount comprises a liquidated sum of $84,813, being the balance of rent outstanding to the date of termination, and a sum of $115,827, being unliquidated damages for loss of rent for the premises between the date of termination of the Defendants' lease and the execution of a new lease with another tenant. 4 By their Defence, the Second and Third Defendants admit that, in breach of the lease, the First and Second Defendants failed to pay rent and other moneys due under the lease and that the lease has been validly terminated. The Defence does not admit the amount of arrears of rent claimed in the Amended Summons. No other defence to that part of the Plaintiffs' claim is shown. The Defence denies that the Second and Third Defendants are indebted to the Plaintiffs in the amount claimed for unliquidated damages on the ground that the Plaintiffs did not use reasonable endeavours to mitigate their loss by finding a new tenant earlier than they did. There are other grounds of defence to this part of the claim which I do not need to elaborate for the purposes of this application. 5 The Second and Third Defendants have filed a Cross Claim against the First and Fourth Defendants wherein they claim that, by reason of breaches of the Partnership Act 1892 (NSW) and other wrongdoing, the First and Fourth Defendants are liable to indemnify the Second and Third Defendants in respect of their liability to the Plaintiffs. 6 The Plaintiffs have filed a Notice of Motion seeking summary judgment against all Defendants. The First and Fourth Defendants have failed to appear despite being given proper notice of the motion. The Second and Third Defendants have appeared and oppose the entry of judgment.