PT Limited v NB2 Pty Limited [2017] NSWSC 484

Supreme Court New South Wales

Medium Neutral Citation: PT Limited v NB2 Pty Limited [2017] NSWSC 484 Hearing dates: 7 April 2017 Date of orders: 07 April 2017 Decision date: 07 April 2017 Jurisdiction: Equity Before: McDougall J Decision: 1. Give judgment and make orders in accordance with paragraphs 1 to 3 of the form of judgment initialled by me and dated today's date. 2. Direct that the exhibits be returned. Catchwords: PRACTICE AND PROCEDURE – application to reopen – no basis for reopening made out Category: Procedural and other rulings Parties: P. T. Limited (1st Plaintiff) Perpetual Trustee Company Limited (2nd Plaintiff) RE1 Limited (3rd Plaintiff)

NB2 Pty Limited (1st Defendant) Michael Panetta (2nd Defendant) Nicolas Basile (3rd Defendant) Representation: Counsel: A F Fernon (Plaintiffs) A M Hochroth (Defendants)

Solicitors: Holding Redlich (Plaintiffs) THOSHLegal (Defendants) File Number(s): 2014/249580

Judgment 1. HIS HONOUR: The plaintiffs sued the first defendant as lessee and the second and third defendants as its guarantors for arrears of rent and for damages representing lost rental following termination of the lease up until the time the premises were relet. After a lengthy hearing, I gave judgment on 31 March 2017 [1] in which I concluded that the plaintiffs were entitled to judgment and that the cross-claim failed. The amount for which judgment is to be entered exceeded $3.5 million before any calculation of interest. 2. I stood the matter over to today to enable the parties to agree a calculation of interest. I am told that has been done. 3. However, on 3 April 2017, the defendants filed a notice of motion seeking leave to reopen for the purpose of relying upon further evidence on the issue of mitigation of loss (including whether the plaintiffs had made good any claim for loss after 6 February 2015). 4. I dealt with these issues, relatively briefly, in my reasons at [67] to [81]. I will not take the trouble of setting out those paragraphs. In essence, I concluded that the plaintiffs had made good their claim and that the defendants had not made good the proposition that the plaintiffs had failed to mitigate their loss. I noted that mitigation, or failure to mitigate, had not been pleaded in the defendants' commercial list response and that the defendants had not adduced any evidence on the topic. 5. I then dealt with the plaintiffs' relatively brief evidence of what was done to relet the premises. I noted that the evidence was criticised because of its skimpy nature but concluded, in the absence of pleading a failure to mitigate, that it was sufficient. 6. The evidence on which the defendants now seek to rely (and for which they need leave to reopen) is that they sought discovery of documents relating, they say, to mitigation of loss. Thus, they say, the plaintiffs should have been aware that mitigation was a live issue and thus in turn that their approach to the evidence should not have been as skimpy as it was. 7. It is not really correct to say that the discovery that had been sought and given related to a pleaded issue of mitigation. Rather, it relates to the plaintiffs' evidence of attempts made by them to relet the premises. Specifically, it refers to the affidavit evidence of Mr Kingston (to which I referred at [75] of my earlier reasons), in which he gave evidence of communications relating to attempts to re-let the premises. The affidavit in support of the application for discovery says that "whether such communications were made will be an issue in dispute in the proceedings" (referring to communications between Mr Kingston or his staff and prospective tenants). In other words, when one looks at the affidavit relied upon to obtain discovery, it is clear that what was sought was discovery of documents so that Mr Kingston's evidence as to reletting could be tested. 8. Further, the affidavit in support of the application for discovery makes it clear that the second and third defendants had made enquiries of people who were supposed to have been approached, and were told that there had been no such approaches. In those circumstances, it is even more surprising that the defendants did not seek to lead evidence on the question of mitigation. 9. Putting the matter into context, I am quite satisfied that if the evidence referred to had been adduced at the hearing, it would have made no difference whatsoever to the conclusions that I expressed in the relevant paragraphs of my reasons. It could not subvert the proposition that the defendants had not pleaded any issue relating to mitigation. Nor could it subvert the proposition that the defendants had not adduced any evidence on that topic. At most, it might bear on my analysis of Mr Kingston's evidence. However, when one considers the way in which the application for discovery was sought, it is clear that it was sought only for the purpose of testing that evidence and not for the purpose of adducing positive evidence. 10. In the circumstances there is no utility in granting the leave sought to reopen and the notice of motion should be dismissed. 11. I add that there was reference made in the course of submissions as to what I said from time to time in my reasons as to the defendants' "commercial list response". Mr Hochroth pointed out, correctly, that his clients had filed an amended commercial list response. That was the document that I had before me and that was the document that I had in mind when from time to time I referred to it. I described it as I did because that is the title that its cover sheet bears. Nonetheless, when I referred to the issues that it raised, I did refer to all the issues, including those that were introduced by amendment on 10 August 2016. 12. I note that the parties have agreed upon the form of orders to be made to give effect to my reasons delivered on 31 March 2017. I give judgment and make orders in accordance with paragraphs 1 to 3 of the form of judgment initialled by me and dated today's date. I direct the exhibits be returned.