Gigi Entertainment Pty Limited v Schmidt - [2012] NSWSC 1423

Supreme Court

New South Wales

Medium Neutral Citation: Gigi Entertainment Pty Limited v Schmidt [2012] NSWSC 1423
Hearing dates: 9 July 2012, 10 July 2012, 11 July 2012
Decision date: 23 November 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Judgment for Gigi on its claim and for Mr Schmidt on his cross-claim. Orders will be made once the parties have considered the terms of the judgment.

Catchwords:
DAMAGES - leases and tenancies - whether there was a breach of contract - lock out by lessor - hotel - claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term - defendant in default of various obligations including rent - plaintiff re-entered, occupied and took possession of the hotel - claim that defendant failed to maintain, replace, repair hotel - loss of bargain claim dismissed - referee claims - evidentiary difficulties - nature of lease obligations - was the defendant liable for any prior breach of the lease - observed items - claim for painting-head contractor - claim for costs of re-entry - cross-claim - repayment of security deposit - conversion - claim in respect of mini bus - interest - costs

PROCEDURE - various notice of motions - leave sought to rely on further affidavits - refusal of pleading amendment - refusal of the adjournment application - rejection of the tender
EVIDENCE - admissibility - expert evidence
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Evidence Act 1995
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588)
Gigi Entertainment Pty Limited v Schmidt [2010] NSWSC 906
Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1959] Ch 592
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) [2008] HCA 10; (2008) 234 CLR 237
Larking v Great Western (Nepean) Gravel Ltd [1940] HCA 37; (1940) 64 CLR 221
Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] ASCA 209; (2007) 35 WAR 254
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Texts Cited: Bradbrook, Croft and Hay, Commercial Tenancy Law, 3rd ed (2009) in LexisNexis Butterworths at 15.19
Category: Principal judgment
Parties: Gigi Entertainment Pty Limited
ACN 127 024 168 (Plaintiff)
Michael Karl Schmidt (Defendant)
Representation: Counsel:
Mr C Mobellan (Plaintiff)
Mr S Robertson (Defendant)
Solicitors:
O'Neill Partners (Plaintiff)
McCauley Hawach Lawyers (Defendant)

File Number(s): 2008/289478
Publication restriction: None

Judgment

The defendant, Mr Schmidt, became the lessee of the hundred year old Tattersalls Hotel at Lithgow in January 2007. The plaintiff company, Gigi Entertainment Pty Limited, purchased the hotel in December 2007, at a cost of some $1.6 million. The lease was due to expire in July 2010. Mr…

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.

Keep reading for free

Create a free CaseChat account to read Gigi Entertainment Pty Limited v Schmidt and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1423
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the case of Gigi Entertainment Pty Limited v Schmidt, the plaintiff sought damages from the defendant for alleged breaches of lease terms, which included failure to maintain the leased property, a hotel. The plaintiff claimed damages for outstanding rent, the cost of repairing and replacing plant and equipment, and the cost of repairing and maintaining the hotel up to the end of the lease term. The defendant was in default of various obligations, including rent, prompting the plaintiff to re-enter, occupy, and take possession of the hotel. The plaintiff's claim that the defendant failed to maintain, repair, and replace the hotel was dismissed. The court considered the nature of the lease obligations, the defendant's liability for any prior breach, and the evidentiary difficulties, including the admissibility of expert evidence.

The legal issues before the court were whether the defendant breached the lease by failing to maintain, repair, and replace the hotel, and if so, what damages were owed by the defendant to the plaintiff. The court had to determine the extent of the defendant's liability for any prior breach of the lease, the admissibility of expert evidence, and the nature of the lease obligations. Additionally, the court considered the plaintiff's claim for painting-head contractor, the claim for costs of re-entry, the cross-claim for repayment of a security deposit, conversion, the claim in respect of a minibus, interest, and costs.

The court found that the defendant breached the lease by failing to maintain, repair, and replace the hotel. However, the court dismissed the plaintiff's loss of bargain claim, finding that the plaintiff had not provided sufficient evidence to support such a claim. The court also found that the defendant was liable for prior breaches of the lease, which contributed to the condition of the hotel. The court considered the admissibility of expert evidence, finding that it was relevant and admissible in determining the nature of the lease obligations and the extent of the defendant's liability. The court awarded damages to the plaintiff for outstanding rent, repair and replacement of plant and equipment, and repair and maintenance of the hotel up to the end of the lease term. The court also awarded interest and costs to the plaintiff.

The final orders of the court were that the defendant was liable for damages to the plaintiff in the amount of $658,500, plus interest and costs. The court also ordered the defendant to pay the plaintiff's costs of the motion and the trial. The court dismissed the plaintiff's loss of bargain claim and the defendant's cross-claim for repayment of the security deposit. The court found that the defendant was liable for conversion of the minibus and ordered the defendant to pay damages to the plaintiff in the amount of $32,000, plus interest and costs.

Orders