Scudooda Pty Ltd v K&E Property Pty Ltd [2018] NSWSC 1397

Supreme Court New South Wales

Medium Neutral Citation: Scudooda Pty Ltd v K&E Property Pty Ltd [2018] NSWSC 1397 Hearing dates: 27-28 August 2018 Date of orders: 11 September 2018 Decision date: 11 September 2018 Jurisdiction: Equity Before: Darke J Decision: Plaintiff's claim that defendant is liable for cost of electricity not made out. Defendant entitled to possession of demised premises, and judgment for arrears of rent and mesne profits. Catchwords: LAND LAW – leases – option to renew validly exercised – party purchasing freehold estate following exercise of option to renew contained in registered lease bound by unregistered renewed lease – agreement of purchaser of freehold estate to take interest subject to leasehold estate gives rise to a personal equity in lessee against purchaser – construction of lease – lease does not contain an obligation on either lessor or lessee to pay for electricity – lessee free to arrange its own electricity supply for which it is liable to pay – lessee not entitled to reimbursement of cost of electricity – lessee not entitled to withhold payments of rent – non-payment of rent amounted to breach of an essential term of the lease and a repudiation of lease – lessor entitled to possession Legislation Cited: Conveyancing Act 1919 (NSW), s 118, s 170 Real Property Act 1900 (NSW), s 40 Retail Leases Act 1994 (NSW), s 18 Cases Cited: Bahr v Nicolay (No 2) (1988) 164 CLR 604 Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liquidation) [2016] NSWCA 165 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Ideal Business Centres Pty Ltd v Violin Holdings Pty Ltd [2018] NSWSC 1249 Mercantile Credits Ltd v The Shell Company of Australia Ltd (1976) 136 CLR 326 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Tenstat Pty Ltd v Permanent Trustee Australia Ltd (1992) 28 NSWLR 625 Category: Principal judgment Parties: Scudooda Pty Ltd (Plaintiff/First Cross-Defendant) K&E Property Pty Ltd (Defendant/Cross-Claimant) Martin Conn O'Sullivan (Second Cross-Defendant) Representation: Counsel: Mr M J Stevens (Plaintiff/Cross-Defendants) Mr J C Kelly SC (Defendant/Cross-Claimant)