Chapel Plaza Pty Ltd v Gorgeous on Chapel Pty Ltd

[2014] VCC 1633

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST

EXPEDITED CASES DIVISION

Case No. CI-12-01549

CHAPEL PLAZA PTY LTD	Plaintiff
v.
GORGEOUS ON CHAPEL PTY LTD & ANOR	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2014
DATE OF JUDGMENT:	30 September 2014
CASE MAY BE CITED AS:	Chapel Plaza Pty Ltd v. Gorgeous on Chapel Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 1633

REASONS FOR JUDGMENT

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Catchwords:            Assessment of damages – Guarantee of lessee’s obligations – Leased premises relet  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.A. Harris	Macpherson Kelly Lawyers
For the Second Defendant	No appearance

HIS HONOUR:

1The Court has assessed the damages the plaintiff is entitled to against the second defendant in the sum of $66,759.04. The plaintiff’s claim against the second defendant arises in respect of the guarantee by the second defendant of the first defendant’s lease of premises in Chapel Street, South Yarra, entered into between the plaintiff and the first defendant on 28 July 2011.

2The lease was for five years, commencing 1 June 2011 at a rental of $32,000 per annum, which was to increase by 3.5% on each anniversary of the commencement of the lease. The lessee also had an obligation to pay a proportion of the outgoings relating to the building of which the lease premises formed part, and to pay legal costs on a solicitor own client basis.

3The first defendant paid no rent and no outgoings. The lessee was evicted and the plaintiff took steps to have the premises re-let. This was achieved by the entry into a new lease on 30 July 2012 with rental to be payable from 29 October 2012. The rental was $32,500 per annum, which already was less than the rent as it would have been adjusted after the first annual review pursuant to the original lease.

4The claim made by the plaintiff includes the following elements:

a.Seventeen months arrears of rental, less a day or two, being twelve months at the original rental and about five months at the adjusted rental;

b.outgoings as apportioned to the premises for a period of almost 17 months;

c.the legal costs involved as a consequence of the lessee’s default.

5A calculation has been prepared on a spread sheet which is Exhibit MJD2 to the affidavit of Michelle Joanne Day sworn 19 September 2014, which she adopted as part of her oral evidence today.

6In the circumstances, I am satisfied that it is appropriate to assess the plaintiff’s damages which it is entitled to recover from the second defendant as guarantor in the total sum of $66,759.04. In addition, the plaintiff claims interest pursuant to clause 3.12 of the lease at the rate of 19 per cent per annum. The plaintiff has claimed interest from the date of the commencement of the second lease on 29 August 2012 on the amount of damages that have been assessed.

7I consider that this is an appropriate calculation although, pursuant to the lease, the plaintiff would have been entitled to claim interest of each of the monthly payments of rent and outgoings as they became due at the commencement of each month.

8I have allowed the total sum of $6,850 for the plaintiff’s costs following the entry of the default judgment including the hearing for the assessment of damages. These costs are, pursuant to clause 1.20.1 of the lease, to be claimed on a solicitor own client basis. The cost records of the solicitors show entries totalling $3,550. I have also allowed $3,300 for counsel’s brief for today.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 30 September 2014.

Dated: 30 September 2014

Olivia Bramwell    

Associate to His Honour Judge Anderson