AAP Engineering Pty Ltd v Fernlog Pty Ltd

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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)

  Solicitors:
W H Lawyers (Plaintiff)
Lawyers Chambers On Riley Pty Ltd (Defendant)
File Number(s): 2015/00272822

Judgment

  1. These proceedings relate to a claim by the plaintiff lessor, AAP Engineering Pty Ltd, for damages and restitution for moneys paid by it to utility companies relating to water and electricity supplied by those utility companies to commercial premises at 106-108 Oak Road, Kirrawee in Sydney in New South Wales. The plaintiff claims that it paid for the water and electricity utility bills on behalf of the defendant lessee for water…

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Details
Case
[2017] NSWDC 141
Decision Date

CaseChat Overview and Summary

In the case of AAP Engineering Pty Ltd v Fernlog Pty Ltd, the primary dispute centred around allegations of breach of a commercial lease by the defendant, Fernlog Pty Ltd. The plaintiff, AAP Engineering Pty Ltd, sought relief in the Supreme Court of New South Wales, arguing that Fernlog had breached the lease by not adhering to certain terms, including the payment of electricity and water bills. Fernlog, in turn, filed a cross-claim for restitution, asserting that AAP had overcharged for electricity and water, claiming that these utilities were not separately metered as required by the lease.

The court was tasked with interpreting the lease to determine whether the electricity and water usage was indeed "separately metered" as stipulated, and whether Fernlog could recover payments made towards AAP's electricity bills on a restitutionary basis. Additionally, the court needed to assess if the parties had adopted a common understanding of their legal relationship, which could establish a conventional estoppel.

The court found that the lease did not require the utilities to be separately metered, thus the plaintiff was not entitled to the additional payments for electricity and water. Furthermore, the court held that the parties had not shared the same assumption about the terms of their legal relationship, and therefore, a conventional estoppel could not be established. Consequently, the defendant was granted judgment on its cross-claim for restitution, and the plaintiff was ordered to pay the defendant's costs of the proceedings. The parties were also directed to bring in Short Minutes of Order to reflect the amounts found to be owed under the cross-claim, and to return the exhibits after 28 days.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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