New South Wales Court of Appeal CITATION: Dee-Tech Pty Limited & Bright Star Laundry Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 290 HEARING DATE(S): 1 November 2010 JUDGMENT DATE: 1 November 2010 JUDGMENT OF: Allsop P at 1 EX TEMPORE JUDGMENT DATE: 1 November 2010 1. The appellants immediately release for the benefit of the respondent the amount of $7,000 held in the account of L J Hooker Commercial Central Coast in respect of outgoings payable from 18 March 2010 to 18 October 2010. 2. The appellants shall pay by 4 pm Friday 26 November 2010 the amount of $3,500 into the account of L J Hooker Commercial Central Coast to be held in escrow in respect of outgoings payable from 18 March 2010 to 18 October 2010. 3. The appellants shall pay: (a) $1,000 per month to the respondent in respect of the outgoings due and payable under the lease on and from 18 November 2010; DECISION: (b) $500 per month into the account of L J Hooker Commercial Central Coast to be held in escrow in respect of the outgoings due and payable under the Lease on and from 18 November 2010. 4. The appellants shall abide by all the terms of the lease, up to and including the hearing and determination of this appeal. 5. The parties have liberty to apply to restore the matter on 48 hours notice. 6. The appellants shall file and serve the Orange Book by no later than Friday 5 November 2010, which shall include in a separate section all further evidence, the submissions on the appellants' motion to adduce additional evidence and the appeal, and the judgment of Handley AJA delivered on 28 June 2010. 7. The respondent's costs of the motion filed on 30 June 2010 including the costs of today to be the respondent's costs in the appeal. 8. The respondent shall file and serve a notice of motion seeking to adduce additional evidence upon the hearing of the appeal on 1 December 2010 about alleged non-compliance with the terms of the lease since 8 December 2009, together with all supporting affidavit and other evidentiary material by no later than Friday 5 November 2010. CATEGORY: Procedural and other rulings Dee-Tech Pty Limited (First Appellant) PARTIES: Bright Star Laundry Pty Ltd (Second Appellant) Neddam Holdings Pty Limited (Respondent) FILE NUMBER(S): CA 2007/254642 COUNSEL: Mr L Shipway (Appellants) Mr M Moir (Respondent) SOLICITORS: Principal Lawyers (Appellants) McDonald Johnson Lawyers (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/254642 LOWER COURT JUDICIAL OFFICER: Tobias JA LOWER COURT DATE OF DECISION: 18 March 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2007/254642 ALLSOP P Monday 1 November 2010 DEE-TECH PTY LIMITED & BRIGHT STAR LAUNDRY PTY LTD v NEDDAM HOLDINGS PTY LTD Judgment 1 ALLSOP P: This is an application for the lifting of a stay granted by Tobias JA on 18 March 2010. The parties have put on evidence but I have dealt with the matter, if I may say so with respect, with responsible counsel before me with their clients here to try and obtain some sensible resolution that befits the parties as commercial people. 2 The dispute is as to a lease of a premises on which a commercial laundry is conducted. Justice Gzell, the primary judge, made orders for possession in favour of the landlord. The appeal in respect of this is being heard on 1 December 2010. 3 The stay granted by Tobias JA was conditioned on compliance with the lease but those orders recognise that there was a dispute between the parties as to the proper amount of outgoings. I do not think that the orders made by his Honour can reach as far as a claim by the applicants on a motion against the respondents that his Honour ordered a particular sum to be paid. 4 An Associate Justice of the Court, Hallen AsJ, is seized of the accounting of the matter prior to the termination of the lease. That accounting will accommodate the debates between the parties as to proper outgoings prior to the termination of the lease. In due course, Hallen AsJ will be an appropriate judicial vehicle for the resolution of the debates as to outgoings during this period of possession pending resolution of the appeal. It perhaps is a matter for the Court hearing the appeal, but it would be obviously sensible, and the parties should work on the basis, that Hallen AsJ will be in due course seized of the question of outgoings after asserted termination and up to the resolution of the appeal. 5 Since March 2010 the appellants have paid no outgoings whatsoever beneficially to the landlord. They have placed in an escrow account with a real estate agent sums totalling $7000 to abide the resolution of the outgoings. I pointed out to Mr Shipway that there was a certain lack of commerciality in this as it might be thought to be unlikely that the appellants would have the benefit of the premises together with matters such as water and not have to pay for it. 6 I sent the parties away to reach some appropriate commercial accommodation of the terms of a revised stay. By and large, if I may say so with respect, the parties have exercised their common sense, assisted no doubt by Mr Shipway and Mr Moir. The only debate is whether or not the appellants should pay a sum immediately. I need to explain the structure of the agreement of the parties before coming to the resolution of the matter that is in dispute. 7 The parties are broadly agreed that a reasonable assessment of the claim of the respondents for outgoings is in the order of $1500 per month. The parties are agreed that an appropriate division between that which is accepted as likely to be due as outgoings and that which is disputed is $1000 and $500 respectively. Therefore, the parties have agreed to the release immediately of the $7000 together with interest, one assumes, in the escrow account as payment of outgoings from, in effect, 18 April 2010, being a month after March, to 18 November; that is, seven months of $1000. 8 What is then sought by the respondents is the payment immediately of an equivalent sum of seven monthly sums of $500 into the same escrow account to hold the position as at 18 November, by seven months of $1000 paid beneficially and seven months of $500 paid into escrow. 9 Thereafter, the question of payments after November are dealt with and the respondents sought $1000 per month from 18 November; that is, beneficially to the respondents, and $500 per month into the escrow account. 10 Mr Shipway, on behalf of the appellants, sought some time to pay those amounts beyond 18 November for the sums in Order 3, and beyond forthwith for the sum in Order 2. 11 There is no financial material before me but, as I said, I dealt with the implicit agreement of the parties with this stay on an informal basis in order to minimise costs. 12 The appeal is to be heard on Wednesday 1 December. In my view, the respondents can be protected yet give the appellants some time to pay. I will amend Order 2 so that, rather than pay $3500 immediately, that sum be paid into the account by 4 pm Friday, 26 November 2010. 13 The following orders drafted in substance by the parties are the foundation of the continuing stay: 1. The appellants immediately release for the benefit of the respondent the amount of $7,000 held in the account of L J Hooker Commercial Central Coast in respect of outgoings payable from 18 March 2010 to 18 October 2010. 2. The appellants shall pay by 4 pm Friday 26 November 2010 the amount of $3,500 into the account of L J Hooker Commercial Central Coast to be held in escrow in respect of outgoings payable from 18 March 2010 to 18 October 2010. 3. The appellants shall pay: (a) $1,000 per month to the respondent in respect of the outgoings due and payable under the lease on and from 18 November 2010; (b) $500 per month into the account of L J Hooker Commercial Central Coast to be held in escrow in respect of the outgoings due and payable under the Lease on and from 18 November 2010. 4. The appellants shall abide by all the terms of the lease, up to and including the hearing and determination of this appeal. 5. The parties have liberty to apply to restore the matter on 48 hours notice. 6. The appellants shall file and serve the Orange Book by no later than Friday 5 November 2010, which shall include in a separate section all further evidence, the submissions on the appellants' motion to adduce additional evidence and the appeal, and the judgment of Handley AJA delivered on 28 June 2010. 7. The respondent's costs of the motion filed on 30 June 2010 including the costs of today to be the respondent's costs in the appeal. 8. The respondent shall file and serve a notice of motion seeking to adduce additional evidence upon the hearing of the appeal on 1 December 2010 about alleged non-compliance with the terms of the lease since 8 December 2009, together with all supporting affidavit and other evidentiary material by no later than Friday 5 November 2010. 14 I make these last orders in relation to further evidence without prejudice to the Court hearing the matter dealing with these issues as it sees fit. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.