Coolabah Tree Aust-Wide Pty Ltd v Dib Group Pty Limited

Counsel for the Respondent/Cross-Claimant in the First and Second Cross-Claims/Cross-Respondent in the Third Cross-Claim: Mr DL Cook

Solicitor for the Respondent/Cross-Claimant in the First and Second Cross-Claims/Cross-Respondent in the Third Cross-Claim: Macree Law

Counsel for the Cross-Respondent in the Second Cross-Claim/Cross-Claimant in the Third Cross-Claim: Mr S Flanigan

Solicitor for the Cross-Respondent in the Second Cross-Claim/Cross-Claimant in the Third Cross-Claim: Wilshire Webb Staunton Beattie

GENERAL DIVISION NSD 1020 of 2008

BETWEEN: COOLABAH TREE AUST-WIDE PTY LTD (ACN 115 559 101)

AND: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND BETWEEN: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND: COOLABAH TREE AUST-WIDE PTY LTD (ACN 115 559 101)

AND BETWEEN: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND: KEVMARK INDUSTRIES PTY LIMITED (ACN 097 354 679)

AND BETWEEN: KEVMARK INDUSTRIES PTY LIMITED (ACN 097 354 679)

and: DIB GROUP PTY LIMITED (ACN 002 889 474)

Order 3 made by Foster J on Friday, 30 July 2010 be varied by deleting therefrom the figure "$370,580.35" and inserting in that order in lieu thereof the figure "$133,026.50".

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

GENERAL DIVISION NSD 1020 of 2008

BETWEEN: COOLABAH TREE AUST-WIDE PTY LTD (ACN 115 559 101)

AND: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND BETWEEN: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND: COOLABAH TREE AUST-WIDE PTY LTD (ACN 115 559 101)

AND BETWEEN: DIB GROUP PTY LIMITED (ACN 002 889 474)

AND: KEVMARK INDUSTRIES PTY LIMITED (ACN 097 354 679)

AND BETWEEN: KEVMARK INDUSTRIES PTY LIMITED (ACN 097 354 679)

and: DIB GROUP PTY LIMITED (ACN 002 889 474)

SUPPLEMENTARY REASONS FOR JUDGMENT 1 On Friday last, 30 July 2010, I delivered judgment in these proceedings (Coolabah Tree Aust-Wide Pty Ltd v Dib Group Pty Limited [2010] FCA 805). By these Supplementary Reasons, I withdraw pars [121] and [123] of the Reasons for Judgment published on 30 July 2010. 2 The correct approach to the assessment of damages on Dib Group's Cross-Claim against Coolabah for repudiation of the sublease is as follows: (a) Calculate the lost rent under the sublease for the period that the premises were vacant, ie for the period from 1 July 2008 to 30 September 2008. This figure is $62,500.00 exclusive of GST. (b) Assess the lost rent under the sublease for the period from 1 October 2008 to 15 July 2013. This is a period of four years and 288 days. The base rent payable by Coolabah to Dib Group under the sublease was $250,000 per annum exclusive of GST. The quantum of the lost rent is therefore $1,197,260 exclusive of GST ($250,000 x four years and 288 days). (c) Therefore, had the sublease run its course, Dib Group would have received the total amount of $1,259,760 from Coolabah exclusive of GST in the period from 1 July 2008 to 15 July 2013. The sublease provided for CPI increases in the rent payable thereunder but Dib Group did not prove what those increases would have been or were likely to have been. (d) But, in order to be in a position to derive that rent, Dib Group would have had to maintain its lease from Kevmark. Thus, it would have had to pay rent to Kevmark under the head lease for the period in question at the rate payable under the head lease. I have calculated the amount which it would have had to pay to Kevmark at [188] and at [189(a)] in Coolabah Tree Aust-Wide Pty Ltd v Dib Group Pty Limited [2010] FCA 805. The amount is $1,126,733.50 exclusive of GST, being $54,448.75 plus $1,072,284.75. (e) Thus, the rent which Dib Group lost for the period from 1 July 2008 to 15 July 2013 is $133,026.50 (being $1,259,760.00 − $1,126,733.50) exclusive of GST. 3 There will therefore be judgment in favour of Dib Group against Coolabah in the amount of $133,026.50. Interest would only be payable on that part of the judgment which is represented by the difference between $62,500.00 and $54,448.75, being the rents payable under the sublease and the head lease respectively for the three months when the property was vacant (1 July 2008 to 30 September 2008). I decline to award interest on that amount. 4 I will vary Order 3 made by me on 30 July 2010 by deleting therefrom the figure "$370,580.35" and inserting in lieu thereof the figure "$133,026.50". I certify that the preceding four (4) numbered paragraphs are a true copy of the Supplementary Reasons for Judgment herein of the Honourable Justice Foster.