Michelle Lena Parker as Administrator of the estate of the late Peggy Lynette Lenin v Kurt Stephen Braune Peggy Lynette Lenin v City Commercial Realty Pty Limited [2014] NSWSC 170

Supreme Court New South Wales

Medium Neutral Citation: Michelle Lena Parker as Administrator of the estate of the late Peggy Lynette Lenin v Kurt Stephen Braune Peggy Lynette Lenin v City Commercial Realty Pty Limited [2014] NSWSC 170 Hearing dates: 3 March 2014 Decision date: 03 March 2014 Jurisdiction: Equity Division - Commercial List Before: Sackar J Decision: Paragraphs 33 and 34 Category: Principal judgment Parties: Michelle Lena Parker as Administrator of the estate of the late Peggy Lynette Lenin v Kurt Stephen Braune Peggy Lynette Lenin v City Commercial Realty Pty Limited Representation: B Burke Christoper Price File Number(s): 2008/290399 2011/413370

Judgment

Ex Tempore 1Two sets of proceeding were before the Court today, and were heard together. 2In the 2008 proceedings, the plaintiff by way of the second further amended summons filed on 8 October 2013 sought unpaid rent and outgoings, interest and costs from Mr Kurt Braune and Raykur Building Group Pty Ltd (Raykur). 3In the 2011 proceedings, the plaintiff by way of the amended summons filed on 8 October 2013 sought damages for breach of contract, interest and costs from City Commercial Realty Pty Ltd (City Commercial) and Mr Kurt Braune. 4In both proceedings, the plaintiff sought relief against a company and its sole director, Mr Kurt Braune, as guarantor under an agreement made with the plaintiff. By reason of City Commercial being in liquidation, the claim for relief was only pressed against Mr Braune in the 2011 proceedings.

The 2008 Proceedings (2008/290399) - the lease proceedings 5The 2008 proceedings were commenced by Mrs Lenin against Mr Kurt Braune (first defendant in these proceedings) and Raykur (second defendant in these proceedings) in relation to unpaid moneys under a lease dated 1 April 2004 (the Lease). 6The plaintiff, Mrs Lenin, passed away last year. Michelle Parker (administrator of her estate) was joined as plaintiff in substitution as a result of orders made by Hammerschlag J on 4 October 2013. 7Raykur is alleged to have stopped paying rent under the lease in 2005, with its last payment occurring on 23 September 2005. Mr Braune is the sole director of the second defendant. 8Mrs Lenin claims rent and outgoings from 1 October 2005, and interest. This is sought from Raykur, or alternatively Mr Braune as guarantor. 9Raykur and Mr Braune also filed a cross-claim on 12 June 2008 naming Mrs Lenin and Mr Michael Lenin as cross-defendants. A Commercial List Cross-Claim Response was filed for Mr and Mrs Lenin on 19 December 2008. The cross claim asserts a surrender of the lease, a claim of misleading and deceptive conduct under section 42 of the Fair Trading Act and the assertion of a breach of a duty of care owed by Mr and Mrs Lenin. 10The defendants denied liability for the rent and outgoings after October 2005 on the basis that Mr Lenin made statements or entered into an agreement that resulted in the surrendering or termination of the lease. No evidence, however, has been served in this respect or indeed on behalf of any defendant in these proceedings or the purchase proceedings.