Chamberlain Early Learning Centre Pty Limited v Precious 1 Pty Limited in its own right and as trustee for The 4 Chamberlain Holdings Family Trust [2017] NSWSC 189

Supreme Court New South Wales

Medium Neutral Citation: Chamberlain Early Learning Centre Pty Limited v Precious 1 Pty Limited in its own right and as trustee for The 4 Chamberlain Holdings Family Trust [2017] NSWSC 189 Hearing dates: 2 November 2016 Decision date: 09 March 2017 Jurisdiction: Equity Before: Emmett AJA Decision: Direct that no later than 3 April 2017, the parties file and serve short minutes of orders to give effect to the reasons and directions for any further submissions that they wish to make on the question of costs Catchwords: LANDLORD AND TENANT – Rent – Set-Off – where debts owed by landlord to tenant – where landlord executed transfer of lease in favour of claimant – where delay in registration of transfer – claimant claiming arrears of rent for period prior to legal transfer of reversion – whether tenant entitled to set off against liability to pay rent the debts owed by original landlord – Civil Procedure Act 2005 (NSW) s 21

LANDLORD AND TENANT – Rent – Equitable set off – where claimant claiming arrears in rent for period subsequent to registration of lease - where lack of mutuality – where claim and counter-claim not directly connected – inequity in allowing claim without taking into account counter-claim Legislation Cited: Civil Procedure Act 2005 (NSW), s 21 Conveyancing Act 1919 (NSW), ss 12, 117 Real Property Act 1900 (NSW), ss 46, 51, 52 Cases Cited: Ashmore Developments Pty Ltd v Eaton [1992] 2 Qd R 1 British Anzani (Felixstowe) Limited v International Marine Management (UK) Limited [1980] QB 137 Carrathool Hotel Pty Limited v Scutti [2005] NSWSC 401 Edlington Properties v JH Fenner & Co Ltd [2006] 1 WLR 1583 Forsyth v Gibbs [2009] 1 Qd R 403 Gumland Property Holdings Pty Limited v Duffy Bros Food Market (Campbelltown) Pty Limited (2008) 234 CLR 237 Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 Hawes v Dean [2014] NSWCA 380 In Re King; Robinson v Gray [1963] Ch 459 James v Commonwealth Bank of Australia (1992) 37 FCR 445 Lucy v Levington (1671) 2 Lev 26 Martyn v Williams (1857) 1 H&N 817 Murphy v Zaminex (1993) 31 NSWLR 439 Palermo Seafoods Pty Limited v Lunapas Pty Limited [2014] NSWSC 792 Roadshow Entertainment v ACN 053 006 269 (1997) 42 NSWLR 462 Tip Fast Pty Ltd v Alexandria Landfill Pty Ltd (2002) 11 BPR 20, 121 Texts Cited: Coke on Littleton (2nd ed, London, 1629) Rory Derham, Derham on The Law of Set-Off (4th Ed 2010, Oxford University Press) JD Heydon, MJ Leeming, PG Turner, Meagher, Equity, Lehane's Equity: Doctrines and Remedies (5th ed, 2015) Category: Principal judgment Parties: Chamberlain Early Learning Centre Pty Ltd (Plaintiff / Cross-Defendant) Precious 1 Pty Ltd in its own right and as trustee for The 4 Chamberlain Holdings Family (Defendant / Cross-Claimant) 4 Chamberlain Pty Ltd (Second Defendant) Representation: Counsel: V Bedrossian / D Turner (Plaintiff / Cross-Defendant) FM Douglas QC / AJ Macauley (Defendant / Cross-Claimant)