Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423

Supreme Court New South Wales

Medium Neutral Citation: Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423 Hearing dates: 9 July 2012, 10 July 2012, 11 July 2012 Decision date: 23 November 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Judgment for Gigi on its claim and for Mr Schmidt on his cross-claim. Orders will be made once the parties have considered the terms of the judgment. Catchwords: DAMAGES - leases and tenancies - whether there was a breach of contract - lock out by lessor - hotel - claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term - defendant in default of various obligations including rent - plaintiff re-entered, occupied and took possession of the hotel - claim that defendant failed to maintain, replace, repair hotel - loss of bargain claim dismissed - referee claims - evidentiary difficulties - nature of lease obligations - was the defendant liable for any prior breach of the lease - observed items - claim for painting-head contractor - claim for costs of re-entry - cross-claim - repayment of security deposit - conversion - claim in respect of mini bus - interest - costs

PROCEDURE - various notice of motions - leave sought to rely on further affidavits - refusal of pleading amendment - refusal of the adjournment application - rejection of the tender

EVIDENCE - admissibility - expert evidence Legislation Cited: Civil Procedure Act 2005 Conveyancing Act 1919 Evidence Act 1995 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588) Gigi Entertainment Pty Limited v Schmidt [2010] NSWSC 906 Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1959] Ch 592 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) [2008] HCA 10; (2008) 234 CLR 237 Larking v Great Western (Nepean) Gravel Ltd [1940] HCA 37; (1940) 64 CLR 221 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] ASCA 209; (2007) 35 WAR 254 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Texts Cited: Bradbrook, Croft and Hay, Commercial Tenancy Law, 3rd ed (2009) in LexisNexis Butterworths at 15.19 Category: Principal judgment Parties: Gigi Entertainment Pty Limited ACN 127 024 168 (Plaintiff) Michael Karl Schmidt (Defendant) Representation: Counsel: Mr C Mobellan (Plaintiff) Mr S Robertson (Defendant) Solicitors: O'Neill Partners (Plaintiff) McCauley Hawach Lawyers (Defendant) File Number(s): 2008/289478 Publication restriction: None