Heriot Pty Ltd v Williams

[2024] NSWCATCD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Heriot Pty Ltd v Williams [2024] NSWCATCD 35

Hearing dates:

29 January 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G Ulman, Senior Member

Decision:

(1)   Within seven (7) days, the applicant file and serve an affidavit setting out interest calculations on the make good claim, re-leasing claim and unpaid rent claim at the rate prescribed by clause 11.4 of the lease from the commencement of these proceedings to 29 January 2024.

(2) Upon the filing of the affidavit, final orders will be made on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013, unless persuaded that there should be oral submissions.

(3)   Costs are reserved.

Catchwords:

Retail lease – damages claim for lost rent and expenses - no rent payable in the first year of the new lease – whether lessor has mitigated the loss – whether lessor entitled to recover GST – whether lease permits entitlement to interest when no demand made for payment made – costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Retail Leases Act 1993

Retail Leases Regulation 2022

Cases Cited:

Karacominakis v Big Country Developments Pty Ltd & Big Country Developments Pty Ltd v Chadlace Pty Ltd & Ors J W Wall Investment Co Pty Ltd & Ors v Big Country Developments Pty Ltd & Ors Hollingsworth & v Big Country Developments Pty Ltd & Ors [2000] NSWCA 313

Texts Cited:

Prof B Edgeworth Butt’s Land Law (7th ed)

Category:

Principal judgment

Parties:

Heriot Pty Ltd – Applicant
Andrew Charles Williams - Respondent

Representation:

Counsel: Mr T Bateman for the Applicant
Solicitors: Baron & Associates
No appearance by the respondent

File Number(s):

2023/00379427

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The applicant is the owner of Shops 5 and 6, 152-156 Campbell Parade, Bondi Beach (shops 5 and 6). It seeks an order pursuant to section 72(1)(a) of the Retail Leases Act, 1994 (Act) that the respondent pay the sum of $627,232.30 said to be owed by the respondent as guarantor of the lease obligations of Bertha Two Pty Ltd (lessee) under a lease of shop 6 (premises).

2. In July 2013, the applicant leased Shops 5 and 6 to the lessee for a term of five years, from where the lessee operated a Hungry Jacks restaurant (2013 lease). The respondent was the guarantor of the lessee’s obligations under the 2013 lease.

3. In addition to the respondent’s guarantee, as security for the lessee’s obligations under the 2013 lease, the applicant held a bank guarantee in the amount of $72,049.99 issued by Suncorp Bank at the request of the lessee (bank guarantee).

4. The applicant and the respondent subsequently entered into a new five year lease of the premises that commenced on 1 July 2018 and was due to end on 30…