Chamberlain Early Learning Centre Pty Limited v Chamberlain Group Pty Limited [2015] NSWSC 751 [2015] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: Chamberlain Early Learning Centre Pty Limited v Chamberlain Group Pty Limited [2015] NSWSC 751 [2015] NSWSC 751 Hearing dates: 3 June 2015 Decision date: 03 June 2015 Jurisdiction: Equity Division Before: Hallen J Decision: Orders and directions, as agreed, made. Catchwords: PRACTICE AND PROCEDURE – Application for interlocutory mandatory injunction restraining Defendant lessor keeping Plaintiff lessee out of possession of the leased premises – Serious question whether lessee liable to pay rent after Premises damaged – Extent of damage – Whether lease has been validly determined by re-entry by Defendant lessor – Alternatively, serious question whether Plaintiff lessee is entitled to relief against forfeiture – Whether balance of convenience favours lessee or lessor

REAL PROPERTY – Leases – Lessor terminated lease by re-entering leased premises for lessee's alleged default in respect of rent payments – Obligation to pay rent an essential term of the original lease – Clause in lease tenant not liable for rent if leased premises destroyed or damaged – Lessee asserts that it was not liable to pay rent because premises could not be used due to water damage – Construction of lease – Alternative claim for relief from forfeiture – Whether mandatory injunction should be granted Legislation Cited: Retail Leases Act 1994 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Attorney-General v Knight [2014] VSC 549 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Cakirgoz v Crouch [2008] NSWSC 1124 Films Rover International Limited v Cannon Film Sales Limited (1986) 3 All ER 722; (1987) 1 WLR 670 Idoport Pty Ltd v National Australia Bank Limited [1999] NSWSC 828 Kids for Life v Chamberlain Group [2014] NSWSC 1561 Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; (2014) 17 BPR 33,147 NWL Limited v Woods [1979] 1 WLR 1294 Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 Riddington v Pye (1989) 9 BPR 16,643 Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837; (2005) 12 BPR 23,143 Stageman v St John Ambulance Association in Western Australia Incorporated [2010] WASC 203 Water Wine & Juice Pty Ltd v Steve Konstantopoulos [2010] NSWSC 312 Category: Procedural and other rulings Parties: Chamberlain Early Learning Centre Pty Limited (Plaintiff) Chamberlain Group Pty Limited (Defendant) Representation: Counsel: Mr V Bedrossian (Plaintiff) Mr G Sirtes SC; Mr D P O'Connor (Defendant)