Mirvac Real Estate Pty Ltd (ACN 003 342 452) v Estro Concept Pty Limited (ACN 169 608 548)
[2025] NSWDC 9
•18 February 2025
District Court
New South Wales
Medium Neutral Citation: Mirvac Real Estate Pty Ltd (ACN 003 342 452) v Estro Concept Pty Limited (ACN 169 608 548) [2025] NSWDC 9 Hearing dates: 4 February 2025 Date of orders: 18 February 2025 Decision date: 18 February 2025 Jurisdiction: Civil Before: Cole DCJ Decision: (1) Judgment for the plaintiff against the first defendant in the sum of $221,040.66, inclusive of interest up to 4 February 2025.
(2) The first defendant is to pay the plaintiff’s costs of the proceedings, to be agreed or assessed.
Catchwords: LEASES AND TENANCIES – Licences – failure to pay licence fee and utility charges
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Cases Cited: Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589
Category: Principal judgment Parties: Mirvac Real Estate Pty Ltd (ACN 003 342 452) (Plaintiff)
Estro Concept Pty Ltd (ACN 169 608 548) (First Defendant)
Gennaro Autore (Second Defendant)Representation: Counsel:
D C Price (Plaintiff)
Solicitors:
Adams & Co Lawyers (Plaintiff)
File Number(s): 2023/277249 Publication restriction: Nil
JUDGMENT
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This is an action for damages for breach of a licence to occupy a shop.
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The plaintiff, Mirvac Real Estate Pty Ltd brought proceedings against both Estro Concept Pty Ltd, the licensee (‘the first defendant’) and Mr Gennaro Autore, the guarantor (‘the second defendant’). The action against Mr Autore is now stayed pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) because Mr Autore declared bankruptcy on 17 December 2024 (Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589).
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At the hearing of the proceedings against the first defendant on 4 February 2024, there was no appearance on behalf of the first defendant. The plaintiff proceeded by reading an affidavit of Mr Alexander Perryman, a Portfolio Manager for Mirvac Group, dated 17 July 2024 (‘the affidavit’). Exhibit AP1 to that affidavit was tendered in evidence (‘the exhibit’). The plaintiff provided written submissions and a chronology.
The evidence
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All of the evidence in this matter comes from the affidavit or the exhibit. I accept the facts in the affidavit. There is no evidence to the contrary.
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The first defendant entered into a licence with the plaintiff to occupy a shop at the Birkenhead Point Outlet Centre on 20 December 2019 (‘the first licence’). The first licence took effect from 20 December 2019 and expired on 20 March 2020. The first defendant did not vacate the shop and continued to occupy the shop after the expiration of the term of the first licence, under clause 2(c) of the first licence.
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In about April 2020, the licence fee ceased to be payable by the first defendant for a period of time under Covid 19 measures.
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On 23 March 2022, the first defendant gave notice of its intention to vacate the shop. However, the first defendant did not, then, vacate the shop and continued to occupy the shop until 31 March 2023.
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In late 2022, after some negotiation, the plaintiff and the first defendant agreed that the licence fees owing to the plaintiff from the first defendant for the period 1 April 2021 to 30 November 2022 were $227,500 plus GST.
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A further shop licence was prepared for the period terminating on 31 March 2023 (‘the second licence’). The licence fee for 1 April 2021 to 30 November 2022 was $227,500 plus GST, as agreed, and the licence fee from 1 December 2022 to 31 March 2023 was “10% of Gross sales + GST, payable in arrears on a monthly basis”.
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The second licence provided for the payment by the first defendant of electricity and air-conditioning charges to be billed monthly in arrears. The first defendant entered into the licence.
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The first defendant did not pay the licence fees or the charges under the second licence.
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On 10 March 2023, the plaintiff’s solicitor issued a letter of demand to the first defendant requiring the payment to the plaintiff of the outstanding licence fees owing as at January 2023.
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From 21 March 2023 to 3 May 2023, legal costs of $1,540 were incurred by the plaintiff as a consequence of the first defendant’s breach of its payment obligations under the second licence. The second licence provides, in clause 5(b), that the first defendant must pay “all reasonable costs (including, but not limited to, legal costs) incurred by the Licensor directly or indirectly arising from any payments being in arrears”.
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The parties came to an agreement which resulted in the second defendant entering into a Deed Poll in about April 2023. The Deed Poll provides for the payment by the second defendant to the plaintiff of monthly payments on the last day of each month from 30 April 2023 to 31 March 2024 to clear the sum owed.
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The first payment due under the Deed Poll was $23,513.75, which was due on 30 April 2023 and was paid on 2 May 2023. The second payment due under the Deed Poll was $23,513.69, which was due on 31 May 2023 and was paid on 29 June 2023. The third payment due under the Deed Poll was $23,513.69, which was due on 30 June 2023 and was paid on 19 July 2023. On or about 31 August 2023, after these proceedings were commenced, the plaintiff received a further payment of $23,514.69 from the second defendant.
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No further payment has been received from either the first or the second defendant.
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The plaintiff’s ledger of transactions with the defendants forms part of the exhibit (pp 53-54). The ledger shows that the balance owing to the plaintiff from the first defendant is $199,249.95 (inclusive of GST) on account of the outstanding licence fees, outgoings and utilities. The legal fees mentioned above at [13], of $1,540, are also claimed, together with interest of $20,250.71, calculated under s 100 of the Civil Procedure Act 2005 (on the pre-GST figure). The plaintiff also seeks its legal costs and disbursements of the proceedings.
Consideration
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On the basis of the evidence before me, the first defendant is in breach of its obligations, under the second licence, to pay licence fees and outgoings and utilities fees, and is liable to pay to the plaintiff the outstanding licence fees and outgoings and utilities fees claimed.
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The first defendant is also in breach of its obligation under the second licence to pay legal costs incurred by the plaintiff arising from the first defendant’s payments under the lease being in arrears and is liable to pay those costs to the plaintiff.
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The plaintiff is entitled to interest on its claim.
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As the plaintiff has been wholly successful in these proceedings, the first defendant is liable to pay the plaintiff’s legal costs of these proceedings.
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The plaintiff is entitled to damages from the first defendant as follows:
Unpaid balance of licence fees and outgoings and utility fees: $199,249.95
Legal fees to 3 May 2023: $ 1,540.00
Interest under s 100 of the Civil Procedure Act: $ 20,250.71
TOTAL $ 221,040.66
Orders:
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The following orders will issue:
Judgment for the plaintiff against the first defendant in the sum of $221,040.66, inclusive of interest up to 4 February 2025.
The first defendant is to pay the plaintiff’s costs of the proceedings, to be agreed or assessed.
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Decision last updated: 18 February 2025
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