B M & J A Holdings Pty Ltd v Clarence Street Developments Pty Ltd [2012] NSWSC 1236

Supreme Court New South Wales

Medium Neutral Citation: B M & J A Holdings Pty Ltd v Clarence Street Developments Pty Ltd [2012] NSWSC 1236 Hearing dates: 2 October 2012 Decision date: 15 October 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: 1Amounts recoverable are: (i)Areas of rent less abatement: $16,877.48 (ii)Damages: $14,475 (iii)Total: $31,352.48 2Parties to be heard on costs and whether orders should be made by Macready AsJ or the matter referred back to Rein J for making of the orders. Catchwords: LANDLORD AND TENANT - rent - abatement - mitigation of loss by lessor - damages - set-offs for lessee Cases Cited: Derbury Pty Ltd v ACI Australia Limited (NSWSC, 8 August 1991, Giles J, unreported) Category: Principal judgment Parties: B M & J A Holdings Pty Ltd (Plaintiff) Clarence Street Developments Pty Ltd (Defendant) Representation: N Allan (plaintiff) Ziman and Ziman Solicitors (plaintiff) R McCloughlin (defendant, in person) File Number(s): 2012 / 67750

Judgment 1This is a hearing of a cross claim by the defendants in these proceedings. There has already been judgment given on 4 September 2012 in the following terms: Pursuant to r 13.1 UCPR give judgment for the cross-claimant against the first cross-defendant (the 'parties') on the following terms: 1.In relation to the claim for unpaid rent of 75 - 77 Clarence Street, Port Macquarie, folio identifier 5/SP85897 (the 'premises'), fix liability on the first cross-defendant for rent for the period it was in possession of the premises, the value of that rent to be determined by an associate Judge. 2.Refer to the associate Judge the question of when possession of the premises by the first cross-defendant (be it lawfully or otherwise) ceased. 3. Refer to the associate Judge the question of what damages and/or rent (if any) the cross-claimant is entitled to under the lease between the parties from the time the first cross-defendant left its possession of the premises. 4. Refer to the associate Judge the question of what set-offs the first cross-defendant may be entitled to for the alleged detention of the first cross-defendant's goods. 5. Refer to the associate Judge the question of the amount, if any, of an abatement in rent in relation to which the cross defendant is entitled due to alleged flooding, pursuant to s 84 of the Conveyancing Act 1919. 2The references which are referred to in the above order are the subject of the hearing before me.