711 Hogben Pty Ltd v Anthony Tadros - [2018] NSWSC 628

Supreme Court

New South Wales

Medium Neutral Citation: 711 Hogben Pty Ltd v Anthony Tadros [2018] NSWSC 628
Hearing dates: 23, 24, 26 April 2018
Decision date: 10 May 2018
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
Decree for specific performance.

Catchwords: LANDLORD AND TENANT – BUILDING AND CONSTRUCTION LAW – agreement for lease – where landlord agreed to carry out certain building work on the premises but did not do so – where binding determination by an expert found that the landlord was in breach – whether appropriate to grant a decree for specific performance requiring the landlord to do the work – claim for damages for breach of the agreement for lease representing the loss of profits from not being able to conduct child care centre business at the premises; HELD: the question of whether specific performance should be granted should be decided before all other questions in the proceedings – decree for specific performance made.
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Pt 28
Cases Cited: 711 Hogben Pty Ltd v Tadros [2016] NSWSC 1683
711 Hogben Pty Ltd v Tadros [2016] NSWSC 697
711 Hogben Pty Ltd v Tadros [2016] NSWCA 244
Category: Principal judgment
Parties:
George Tadros - First Cross-Claimant
Anthony Tadros - Second Cross-Claimant
Sharon Tadros - Third Cross-Claimant
Bill Panopoulos - First Cross-Defendant
Peter Panopoulos - Second Cross-Defendant
711 Hogben Pty Ltd ACN 157911745 - Third Cross-Defendant
Representation:
Counsel:
M. Hadley - Cross-Claimants/Defendants
N. Cotman with W.R. Chan - Cross-Defendants/ Plaintiffs
Solicitors:
One Group Legal Pty Ltd - Cross-Claimants/ Defendants
Harrington Maguire & O’Brien - Cross-Defendants/ Plaintiffs

File Number(s): 2015/330101

Judgment

On 11 April 2014, the second cross-claimant, Anthony Tadros, and the third cross-claimant, Sharon Tadros (collectively, the Tenants), entered into an agreement for lease (AFL) with the third-cross defendant, 711 Hogben Pty Ltd (the Landlord), for premises at levels 1 and 2, 7-11 Hogben Street, Kogarah, which the Tenants proposed to use as a child care centre. The first cross-claimant, George Tadros, guaranteed the Tenants’ obligations under the AFL. George is the father of Sharon and Anthony. There was some question as to whether the child care business would be operated by the Tenants themselves or by George and his wife, but, in the way that the case was ultimately conducted on both sides, this question does not arise.
I will refer to the parties by their first names. No disrespect is intended.
The AFL provides for a lease of ten years, with two options to renew of ten years each.
The Landlord agreed to carry out, for the Tenants’ benefit, building work designated on a plan numbered CD 1231 (the Plan).
The proposed child care centre is on levels 1 and 2 of a multi-storey building. By all accounts, a child care centre not on ground level would once have been unusual. But it is now not uncommon.
There are planning rules for child care centres, which apparently require provision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 628
Decision Date: 10 May 2018

CaseChat Overview and Summary

The case of 711 Hogben Pty Ltd v Anthony Tadros involved a dispute between the plaintiff, a company seeking to lease premises, and the defendant, the landlord. The plaintiff had entered into an agreement for lease with the defendant, which included a clause where the defendant agreed to carry out certain building work on the premises. However, the defendant failed to perform the required work, leading to the plaintiff's inability to operate a child care centre at the premises. The plaintiff sought a decree for specific performance, requiring the defendant to carry out the building work, as well as damages for the loss of profits due to the breach.

The court was required to determine whether it was appropriate to grant a decree for specific performance, considering the defendant's failure to complete the building work. Additionally, the court needed to assess the claim for damages for the loss of profits from not being able to operate the child care centre. A significant issue was whether specific performance was an appropriate remedy given the nature of the building work and the delay in seeking relief.

The court found that specific performance was an appropriate remedy in this case, as the building work was essential for the premises to be fit for the intended use as a child care centre. The court emphasised that the question of whether specific performance should be granted should be decided before all other questions in the proceedings. The court granted the decree for specific performance, requiring the defendant to carry out the necessary building work. The court also allowed the claim for damages for the loss of profits, recognising the plaintiff's loss due to the defendant's failure to complete the work in a timely manner.

The final orders included a decree for specific performance, requiring the defendant to complete the building work as agreed in the lease agreement. The court also awarded damages to the plaintiff for the loss of profits resulting from the delay in the defendant's performance of the contractual obligations. The court's decision provided clarity on the appropriate remedy for breaches in building and construction agreements within the context of a lease.

Orders