Malabar RSL Sub-Branch Club Pty Ltd v RSL Custodians Pty Ltd [2014] NSWSC 1016

Supreme Court New South Wales

Medium Neutral Citation: Malabar RSL Sub-Branch Club Pty Ltd v RSL Custodians Pty Ltd [2014] NSWSC 1016 Hearing dates: 1-4, 7-9 July 2014 Decision date: 25 July 2014 Jurisdiction: Equity Division Before: Rein J Decision: See [84] Catchwords: EQUITY - Commercial leases - Breach of a lease - Failure to rectify defects in accordance with obligations under the lease - Defendant admitted failure to rectify leaks was a breach of the lease - Failure to repair car park was a breach - Damages - Claim for loss of profits - Erroneous calculation of loss - Failure by plaintiff to establish loss - Insufficient evidence to support claim - Alternative assessment of damages - Loss not assessable on available evidence Cases Cited: Charltons CJC Pty Ltd v Fitzgerald (No 3) [2013] NSWSC 1945 Howe v Teefy (1927) 27 SR (NSW) 301 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 NCON v Australia Limited v Spotlight Pty Ltd [2012] VSC 604 Payne v Parker [1976] 1 NSWLR 191 Water Board v Moustakas (1998) 77 ALR 193 Category: Principal judgment Parties: Malabar RSL Sub-Branch Club Pty Ltd (Plaintiff) RSL Custodians Pty Ltd (Defendant) Representation: Counsel: G Parker SC/ R Vincent (Plaintiff) C Harris SC/L Tyndall/M Avenell (Defendant) Solicitors: HWL Ebsworth (Plaintiff) Bowen Legal (Defendant) File Number(s): 2013/227548

Judgment 1The plaintiff ("the Club") is a social and recreational club, operating at 22-24 Ireton Street, Malabar NSW ("the property"). The property is now owned by the defendant ("the Custodian") which is the trustee for the RSL Sub-Branch, and which became the registered proprietor of the property in November 2006.