Cihan v Border Hotels No 2 Pty Ltd [2016] NSWSC 1592

Supreme Court New South Wales

Medium Neutral Citation: Cihan v Border Hotels No 2 Pty Ltd [2016] NSWSC 1592 Hearing dates: 17-19 October 2016 Decision date: 11 November 2016 Jurisdiction: Equity Before: White J Decision: 1. Give judgment for the second plaintiff against the first defendant in the sum of $24,498. 2. Order that the plaintiffs' claims against the second and third defendants be dismissed. 3. Order that the cross-claim be dismissed. Catchwords: CONTRACT — contract for sale of business and lease of premises — contract for sale of business required payment of a substantial deposit on the making of the contract — lease required rent to be paid in advance — defendants took possession of the premises and commenced operating the business on providing post-dated cheques for the required deposit and first month's rent — contract for sale of business not exchanged — cheques for deposit and rent not honoured when presented by the plaintiffs — defendants not entitled to rely on failure of condition for exchange — plaintiffs retook possession of the business — whether defendants entitled to damages — whether plaintiffs agreed to permit defendants to retain possession of the business on payment of a weekly sum with payment of the purchase price to be made after a year — plaintiffs agreed to a short extension of time for the required deposit to be made — defendants failed to pay deposit when required — defendants had no continuing right of possession — defendants not entitled to damages — whether plaintiffs entitled to contract measure of damages and rent — defendants repudiated the agreement by failing to pay deposit — agreement for sale and lease terminated when plaintiffs accepted defendants repudiation of the agreement by retaking possession when defendants failed to make payment of the deposit — damages to put plaintiffs in the same position as they would have been had the contract been perform not claimed nor proved — mesne profits not claimed — plaintiffs entitled to ten precent deposit and one month's rent less amounts already received Legislation Cited: Retail Leases Act 1994 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Cihan v Border Hotels No. 2 [2015] NSWSC 297 Border Hotels No. 2 Pty Ltd v Mehmet Cihan as Trustee for the Cihan Family Trust [2015] NSWSC 273 Border Hotels No. 2 Pty Ltd v Mehmet Cihan as Trustee for the Cihan Family Trust (Court of Appeal (NSW), Ward J, 23 March 2015, unrep) Masters v Cameron (1954) 91 CLR 353 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Category: Principal judgment Parties: Mehmet Cihan as Trustee for Cihan Family Trust (1st Plaintiff) Cihan Family Pty Ltd (2nd Plaintiff) Border Hotels No 2 Pty Ltd (1st Defendant) Andrew Bezeg (2nd Defendant) John Palasty (3rd Defendant) Representation: Counsel: J Jobson (Plaintiffs) D A Allen (Defendants)