Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd [2018] NSWSC 1586

Supreme Court New South Wales

Medium Neutral Citation: Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd [2018] NSWSC 1586 Hearing dates: 27 October and 1 December 2017 and 7 March 2018 Date of orders: 22 October 2018 Decision date: 22 October 2018 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following directions as to possession, rental arrears, mesne profits and damages:

(1) The plaintiff shall file and serve short minutes of order reflecting this judgment within 7 days of the publication of this judgment;

(2) The plaintiff shall file and serve a submission in relation to the calculation of mesne profits and the plaintiff's entitlement to damages within 14 days of the publication of this judgment; and

(3) The defendant shall file and serve any submission in reply as to mesne profits and damages within 28 days of the publication of this judgment.

The issue of mesne profits and damages shall be determined upon the papers (that is, without further oral hearing) unless either party seeks an oral hearing.

As to costs, the Court makes the following order and directions:

(1) Costs are reserved.

(2) The plaintiff shall file and serve upon the defendant and Mr Shang a submission and further evidence in relation to costs including the order for costs sought by the plaintiff within 21 days of the publication of this judgment.

(3) The defendant and Mr Shang shall file and serve any submissions and further evidence in reply within 42 days of the publication of this judgment.

(4) The further disposition of the issue of costs will be assessed after receipt of the submissions of the respective interests and any evidence. The parties are at liberty to make submissions as to the procedure to be adopted in the resolution of any application for costs made by the plaintiff. Catchwords: POSSESSION – commercial lease – agreement to lease – child care statutory framework – approvals for child care services – credibility of witness – whether a valid lease existed – pre-conditions within agreement to lease – construction of clauses within agreement to lease – principles regarding construction of a commercial contract – words within clause may be corrected to avoid absurdity – pre-conditions of the agreement to lease were satisfied – alternative submission – the defendant waived its right to insist on satisfactions of pre-conditions in agreement to lease before the lease was registered – the defendant breached the agreement to lease – no verbal agreement found regarding no payment of rent until approval was received – a valid lease existed which was operative from the date of registration – breaches of the lease by the defendant – failure to pay rent – breach of covenants as to use – failure to comply with laws regarding use of the premises – the plaintiff's entitlement to relief – plaintiff entitled to possession of the premises – plaintiff entitled to rental arrears – plaintiff entitled to mesne profits – plaintiff claimed further damages – claims by the defendant – defendant not entitled to damages nor compensation for fit-out expenses – nature of child care operation did not permit the defendant to occupy the premises without paying rent – directions – costs are reserved Legislation Cited: Children (Education and Care Services National Law Application) Act 2010 (NSW) Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Education and Care Services National Regulations (NSW) Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Bowler v Hilda Pty Ltd (2001) 112 FCR 59; [2001] FCA 342 Cherry v Steele-Park (2017) 351 ALR 521; [2017] NSWCA 295 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Palermo Seafoods Pty Ltd v Lunapas Pty Ltd (2014) 17 BPR 33,047; [2014] NSWSC 792 Re United Pacific Transport Pty Ltd [1968] Qd R 517 Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 Zintix (Australia) Pty Ltd v Employsure Pty Ltd [2018] NSWSC 924 Category: Principal judgment Parties: Medi-Aid Centre Foundation Ltd (Plaintiff) Joys Child Care Ltd (Defendant) Representation: Counsel: J E Lazarus with M E Sheldon (Plaintiff)