Blacksheep Productions Pty Ltd v Waks - [2008] NSWSC 488

CITATION: Blacksheep Productions Pty Ltd v Waks [2008] NSWSC 488

HEARING DATE(S): 16 May 2008

JUDGMENT DATE :
22 May 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Injunction extended on terms to 29 May 2008 for these reasons to be published, but not to be further extended.

CATCHWORDS: PROCEDURE [760]- Application for extension of injunction prohibiting defendants from re-entering or gaining possession of lease property- Plaintiff alleges unliquidated off-setting claim against defendants arising from water damage- Distinctions between off-setting claim in Corporations Act and set-off at law or in equity- No set-off- Equitable set-off requires a sufficiently close connection between the demands- Lack of requisite connection in present case.

LEGISLATION CITED: Corporations Act 2001 (Cth) s 459H

CASES CITED: Abignano v Wenkart (1998) 9 BPR 16,765
Batiste v Lenin (2002) 10 BPR 19,441
Batiste v Lenin (2002) 11 BPR 20,403
Bayview Quarries Pty Ltd v Castley Development Pty Ltd [1963] VR 445
Fong v Cilli (1968) 11 FLR 495
Lighting Sciences Australasia Pty Ltd v Southgate (1997) 15 ACLC 632
McDonnell & East Ltd v McGregor (1936) 56 CLR 50
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451

PARTIES: Blacksheep Productions Pty Ltd (P)
Sheree Waks (D1)
Borivoj Maksimovic (D2)

FILE NUMBER(S): SC 2329/08

COUNSEL: A J Rollins (S) (P)
J T Johnson (D)

SOLICITORS: Deutsch Partners Lawyers Pty Ltd (P)
Proctor Phair Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 22 May 2008

2329/08 – BLACKSHEEP PRODUCTIONS PTY LTD v WAKS

JUDGMENT

1 HIS HONOUR: At all material times the plaintiff was the tenant of the defendants of part of a building at Ultimo. It would seem that the plaintiff uses its part of the building for offices and for the production of video and film.

2 The parties have had a stormy relationship. Prior to 30 August 2007, the defendants claim that the plaintiff was extremely dilatory in paying its rent and other obligations under its lease and that it owed a large sum of money. There was a mediation and the result of the mediation is that a deed was entered into between the parties, which is DX02 in these proceedings. The deed bears date 30 August 2007. Pages 11-12 of the deed read as follows:

“The parties agree that they shall release one another from all claims and obligations whatsoever arising from or in connection with the occupation of the premises by the tenant, upon the following terms:-

(a) the tenant shall pay to the landlord the sum of $285,000 by instalments of:-

(i) $100,000 upon execution of a lease on the terms and as described in this agreement;

(ii) $100,000 within 30 days after registration of such lease and notification of such registration by the landlord’s solicitor to the tenant’s solicitor;

(iii) $85,000 within 30 days after the time at which the instalment in (ii) above becomes due and payable.

(b) The above payments may be…

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: [2008] NSWSC 488
Decision Date: 22 May 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Blacksheep Productions Pty Ltd sought an extension of an injunction that prohibited the defendants, Waks, from re-entering or gaining possession of a property leased to them. The plaintiff claimed that the defendants had caused water damage to the property and sought an unliquidated offset against the defendants. The defendants argued that the plaintiff's claim was not a set-off claim under the Corporations Act but rather a claim for damages at law or in equity.

The court had to determine whether the plaintiff's claim was a set-off claim under the Corporations Act or a claim for damages at law or in equity. The court also had to decide whether the plaintiff's claim was a set-off claim that could be offset against the defendants' liability for rent. The court held that the plaintiff's claim was not a set-off claim under the Corporations Act but rather a claim for damages at law or in equity. The court further held that the plaintiff's claim did not meet the requirements for equitable set-off as there was no sufficiently close connection between the demands.

The court found that the plaintiff's claim for damages for water damage to the property was not a set-off claim under the Corporations Act but rather a claim for damages at law or in equity. The court held that equitable set-off requires a sufficiently close connection between the demands, which was not present in this case. The court found that the plaintiff's claim for damages was not a set-off claim that could be offset against the defendants' liability for rent. The court did not grant the plaintiff's application for an extension of the injunction.

The court ordered that the application for extension of the injunction be dismissed. The court further ordered that the plaintiff take nothing by way of its application and that the defendants pay the plaintiff's costs of the application on the standard basis.

Orders