AAP Engineering Pty Ltd v Fernlog Pty Ltd [2017] NSWDC 141

District Court New South Wales

Medium Neutral Citation: AAP Engineering Pty Ltd v Fernlog Pty Ltd [2017] NSWDC 141 Hearing dates: 2-3 February 2017, 19 May 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the defendant in relation to the Statement of Claim; (2) Judgment on the Amended First Cross-Claim for the defendant/cross-claimant; (3) The parties are to bring in Short Minutes of Order within 7 days to reflect the amounts found to be owed under the Cross-Claim; (4) The plaintiff is to pay the defendant's costs as agreed or assessed of the proceedings including the Amended First Cross-Claim; (5) The parties have liberty to apply to vary the order made in paragraph (4) above; (6) Exhibits to be returned after 28 days. Catchwords: Commercial lease – alleged breach by lessee - applicable principles of construction – restitutionary claim – conventional estoppel – whether electricity and water usage "separately metered" within lease – whether parties had adopted the same assumption as to the terms of their legal relationship so as to establish a conventional estoppel – whether defendant entitled to return of payments made towards plaintiff's electricity bills on a restitutionary basis. Legislation Cited: Australian Consumer Law Evidence Act Cases Cited: ASIC v Rich [2005] NSWSC 417 Australia and New Zealand Banking Ltd v Westpac Banking Corporation (1988) 164 CLR 373 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Caringbah Investments Pty Ltd v Caringbah Business & Sports Club Ltd (In Liquidation) [2016] NSWCA 165 Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Henville v Walker (2001) 206 CLR 459 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 Salvatore Sanfilippo v Anvest Holdings Pty [No 2] [2014] NSWSC 712 TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343 Category: Principal judgment Parties: AAP Engineering Pty Ltd (Plaintiff) Fernlog Pty Ltd (Defendant) Representation: Counsel: M Zammit (Plaintiff) M Southwick (Defendant)