Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd

The proceedings involved two separate applications made by Spuds Surf Chatswood Pty Ltd (the Applicant) against PT Ltd (the Respondent), a property developer. The first, in proceedings 065171, was an application for relief under the Retail Leases Act 1994 (NSW) and the second, in proceedings 085081, was an application for rectification of a lease. The Respondent in turn made a cross-claim for unpaid rent and damages. The Applicant's claims were dismissed and the cross-claim allowed. The Applicant was ordered to pay the Respondent $327,533.55 plus interest to date, with the issue of costs reserved. The Applicant alleged, in the first proceedings, that the Respondent had engaged in unconscionable conduct, including pre-lease misrepresentation, and that it had breached the covenant for quiet enjoyment and s34 of the RLA. The Applicant's claims failed for reasons that included the absence of evidence to prove any of the alleged representations, the absence of any substantial interference with the Applicant's business, and the absence of any substantial breach of the covenant for quiet enjoyment. The Applicant also claimed, in the second proceedings, for rectification of the lease on the basis that it had made an alteration to the lease which the Respondent had accepted. The claim failed because there was no evidence of acceptance of the alteration. The Respondent's cross-claim for unpaid rent and damages succeeded because the Applicant had failed to pay the rent.