Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd - [2021] NSWSC 1578 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd

[2021] NSWSC 1578

Supreme Court of NSW|2021-11-30|Before: Ward CJ

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-11-30

Before

Ward CJ

Catchwords

[2004] NSWSC 664 Green v CGU Insurance (2008) 67 ACSR 105
[2008] NSWCA 148 Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271 Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276
[2007] NSWCA 291 John Arnold's Surf Shop (in liq) v Heller Factors Pty Ltd (1979) 22 SASR 20
[1979] CLC 40-521 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377

Source

Original judgment source is linked above.

Catchwords

[2004] NSWSC 664 Green v CGU Insurance (2008) 67 ACSR 105[2008] NSWCA 148 Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271 Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276[2007] NSWCA 291 John Arnold's Surf Shop (in liq) v Heller Factors Pty Ltd (1979) 22 SASR 20[1979] CLC 40-521 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377[2008] VSCA 93 Pacific Acceptance Corporation Limited v Forsyth (no. 2) [1967] 2 NSWR 402

Judgment (16 paragraphs)

[1]

Background

I set out below the background to the present application as gleaned from the evidence filed on this application. In so doing, I make no findings as to disputed issues of fact or law (which must remain for determination on the final hearing of the matter) other than as necessary for the determination of the application for security for costs.
As noted above, Interslice is the former tenant of premises (the lower ground floor) comprising part of the former Bass Hill RSL Club. It occupied those premises pursuant to a registered lease entered into with the former owner of the Bass Hill property. The lease was for a term of 5 years commencing on 16 October 2014 and terminating on 15 October 2019, with an option to renew for a period of 5 years. The permitted use specified in the reference schedule to the lease was that of "Health and fitness centre (including crèche)". (Relevantly, CCA contends that this use was permissible only while it was ancillary to the use of the Bass Hill property as a club - see below.)

[3]

Prospect of success/genuineness of proceedings

As to the prospects of success and genuineness of the proceedings (see r 42.21(1A)(a)-(b) of the UCPR), where a claim is, on its face, prima facie regular and discloses a cause of action then, in the absence of evidence to the contrary, the Court will proceed on the basis that the claim is bona fide and that it has reasonable prospects of success (see KP Cable Investments v Meltglow at [197]; Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 (Fencott v Eretta) at 514). Interslice does not here suggest otherwise.
CCA, however, goes further and maintains that the claim by Interslice for damages for wrongful repudiation of the lease by CCA is weak. Insofar as the conduct said to amount to repudiation is CCA's refusal to provide a new lease to Interslice, following exercise of the option, CCA contends that in fact it affirmed the lease (before any purported termination by Interslice), by serving the 11 March 2020 notice of breach of covenant (which had not expired as at the time that Interslice purported to terminate the lease on 7 April 2020). CCA thus maintains that it is difficult for Interslice to contend that CCA was evincing an intention not to be bound by the lease, when, in fact, it was seeking to enforce it.
I here proceed on the basis that the claim on its face is bona fide and regular. It is not appropriate here to speculate as to the prospects of success of the competing allegations of repudiation, which raise interesting academic issues. On the one hand, CCA emphasised in oral submissions that it was not in a position to issue a new lease without being accused of approbating and reprobating (having regard to its contention that the ongoing use of the premises as a gym was unlawful); and, as noted above, relies on the sending of the notice of breach of covenant as an affirmation of the lease. Interslice, on the other hand, points to the fundamental obligation of a landlord, on valid exercise of an option for renewal, to issue a lease in registrable form (which CCA undoubtedly refused to do). As adverted to above, I see room for debate on those issues. Suffice it to say that I do not regard either of the claims of repudiation as untenable and that this is ultimately a matter for trial.

[4]

Impecuniosity and cause thereof

As to the factor of impecuniosity (r 42.21(1A)(c) of the UCPR), which has been recognised as a substantial factor favouring the exercise of the discretion to order security (see Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271 at [40] per Mason P; Tyneside Property Management Pty Limited v Hammersmith Management Pty Ltd [2013] NSWCA 404 at [18] per Sackville AJA), Interslice now accepts (though it has previously asserted otherwise) that it is currently unable to meet an adverse costs order in the proceedings. The change of position in this regard seems (by reference to the affidavit of its sole director and shareholder) to be that since the time that security for costs was first raised the cash balance of Interslice's bank account has been depleted by Interslice's own costs incurred in the proceedings (and by the fact that the gym has been closed and Ms Bakic is unemployed).
Interslice maintains that its impecuniosity is attributable to the conduct of CCA (such as its conduct in disconnecting power to the premises and the like) (see r 42.21(1A)(d) of the UCPR). Interslice accepts that it bears the onus of establishing both the adequacy of its financial position before its dealings with CCA and that CCA's actions have caused or at least materially contributed to its current inability to meet an order for security for costs (citing Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276; [2007] NSWCA 291 at [94] per McClellan CJ at CL, with whom Mason P agreed; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 at [100]).
In this regard, Interslice complains that, by reason of CCA's repudiation of the lease (by failing to issue the lease for some eight months), it was forced to terminate the lease and has lost the right to operate the gym at the premises and earn profit. It is noted that the second affidavit of Interslice's solicitor attaches cash flow statements for 2019 and 2020 which show the difference in income between the two years as well as BAS statements.
CCA, on the other hand, says that it was not the cause of Interslice's impecuniosity. It says that Interslice elected to terminate the lease when, on Interslice's own case, it could have sought specific performance of the agreement to grant a lease following exercise of the option. CCA says that the difference in cashflow (evidenced in the 2019/2020 statements) cannot in those circumstances be sheeted home to CCA. In any event, CCA says that, before the cashflow statement of May 2020 (that is on 7 April 2020), Interslice had already purportedly terminated the lease itself, had closed the premises and was no longer trading.
CCA points to other circumstances at the time, including the COVID-19 pandemic (with the enforced lockdown from 23 March 2020, including the forced closure of gymnasiums) and the fact that the Bass Hill RSL Club was no longer operating from the land, as potential reasons for Interslice's impecunious position (and not the fault of CCA).
As noted, it is not disputed that Interslice is impecunious. However, it seems to me arguable that (at least from 23 March 2020) a number of other events could have caused or constituted to the difficult financial circumstances facing Interslice. Therefore, I am cautious about attributing to CCA the sole blame for Interslice's financial woes, although I readily accept that some of the alleged conduct of CCA (in disconnecting electricity and the like) surely contributed to those difficulties.

[5]

Is Interslice effectively in a defensive position?

As to whether Interslice is effectively in the position of a defendant (r 42.21(1A)(e) of the UCPR), Interslice maintains that it was forced to commence the proceedings in circumstances where, at the end of the lease, CCA refused to return its bond moneys. It is noted that a number of requests were made for the return of the sum of $30,000 provided by way of bank guarantee; and that CCA indicated that it had decided to "cash in the bank guarantee and apply the proceeds against its loss suffered in the matter", to which, by letter dated 13 October 2020, Interslice's solicitors advised that, "[t]he actions of your client leave our client with no choice but to commence proceedings forthwith in the District Court for damages by reason of your client's repudiation of the Lease and failure to return the bond".
Reference is made by Interslice to Amalgamated Mining Services Pty Ltd v Warman International Limited (Federal Court, unreported, 8 September 1988) where Wilcox J refused an order for security and held that, in a practical sense, the applicant had been forced to take legal action unless the required undertakings were granted. (In this regard, while I accept that Interslice was in the position that, if it wished to receive its bond moneys, it was required to commence proceedings, that does not to my mind make it akin to a defendant in the current proceedings; moreover the pleaded claim, even in the District Court, went beyond the claim for the bond moneys - that claim being one which, on its own, could have been brought in the Local Court.)
Further, Interslice points to CCA's cross-claim filed (belatedly, Interslice says) on 21 September 2021 (a draft of which was served on 4 August 2021). It is noted that CCA's costs expert, Mr Paul Taylor, was specifically asked (see [6.4]) to assume that the costs of the cross-claim would be the same costs as preparing the defendant's costs in defending the claim. In those circumstances, where substantially the same issues are likely to arise on an action brought by an impecunious company against a defendant as on a cross action brought by the defendant against the impecunious company, it is said that the Court should be slow to order security (Interslice here citing Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289 at 299-300, Dalma Formwork Pty Ltd v Concrete Constructions Group Ltd [1998] NSWSC 472 and that matter on appeal, Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd [1999] NSWCA 16 (Concrete Constructions)). It is noted that, in Concrete Constructions, Sheppard AJA (with whom Mason P and Handley JA agreed) endorsed the proposition that the fact that where a claim and a cross-claim arise out of the same, or essentially the same, factual matrix this is a very important consideration and that it would be "quite wrong to preclude a party from litigating matters by way of defence to a cross-claim merely because that party was the initial institutor of the proceedings" (at [24]).
Interslice says that, in the present case, there is an overlap of the issues that will arise on the cross-claim and on the defence to Interslice's claim; a common factor in both matters being the claim by CCA that it was entitled to refuse to issue a lease on the basis that Interslice was not entitled to operate a gym under the development consent obtained by the earlier landlord. It is said that if that defence is unsuccessful then CCA repudiated the lease and the cross-claim for lost rent will not succeed.
In response to this, CCA says that (as a claim in damages), there is nothing defensive about Interslice's position. It is said that the fact that there is a cross-claim does not mean that Interslice is not a protagonist; nor has it forced Interslice to litigate.
CCA insists that Interslice chose to terminate, rather than deal with the issue of lawfulness of the use (which CCA says was the reason that no new lease was forthcoming). It is said that, had CCA complied with the request for a new lease to be issued (and issued the lease document) it would have been met with an assertion that it had waived any right by reason of such breach. (Pausing there, I see no reason why the new lease could not have been proffered without prejudice to CCA's contention that Interslice was in breach and reserving its rights to protect against any allegation of waiver, but it is not necessary here to explore this.)
CCA says that: it bought the land after the Bass Hill RSL Club had closed; the closure of the Club rendered the use of Interslice's premises unlawful; although Interslice had exercised an option to continue the lease, the planning issue of its legality of use of the premises in the circumstances of the closure of the Club was clearly brought to its attention; and that Interslice did not properly deal with the issue of legality of use, although it denied the illegality. It is said that, instead, Interslice purported to terminate the lease on the additional ground that CCA's notice of breach of covenant, which attempted to deal with the question of legality of use, was repudiatory.
In those circumstances, CCA says that Interslice's claim is clearly offensive not defensive in character. (I agree, though I consider that Interslice is nevertheless in a defensive position on the CCA cross-claim.)
CCA, in oral submissions, met the argument as to overlapping claims by proffering an undertaking in effect that, if the provision of security for costs meant that Interslice was unable to proceed with its claim, then it would not prosecute its own cross-claim. In my opinion, the proffering of that undertaking is sufficient to meet the concern as to fairness which would otherwise arise (because of the overlap between claim and cross-claim) if only the cross-claim were able to proceed. This is clearly a case where the opposing claims arise out of the same factual matrix; not a claim (as referred to in John Arnold's Surf Shop (in liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; [1979] CLC 40-521 by Legoe J) as "one seeking to go out for the recovery from the opposition by attack".
Having regard to the undertakings proffered by CCA, I accept that there is no reason to conclude that the making of an order for security for costs would unfairly expose Interslice to the cross-claim in circumstances where the claim could not be pursued.

[6]

Stifle the litigation

As to whether an order for security would stifle the proceedings (r 42.21(1A)(f) of the UCPR), reference is made to what was said in Fencott v Eretta by French J, as his Honour then was (at 513), namely that, while the probability or certainty that an order for security for costs will frustrate the plaintiff's claim will not automatically lead to such an order being withheld, it is a factor relevant to the granting of an order "and will weigh against it" where there is "no party standing behind the company who is in a position to provide the necessary security".
Ms Bakic, in her second affidavit, has deposed to the current financial position of the company and her own position as sole director and shareholder (see at [3] and [7]). It is submitted by Interslice that, if substantial security of $90,000 were to be ordered then Interslice would not be able to comply with the order (see Ms Bakic's first affidavit at [21]). As noted above, Ms Bakic does not proffer an undertaking to stand behind the company in this regard (though CCA contends that there are assets which could be available to Ms Bakic and her husband to secure such an undertaking).
Ms Bakic has given evidence that she owns jointly with her husband two properties at Auburn, with an asserted combined value of $2.15 million, and a mortgage of $250,423.75. CCA says that their evidence makes clear that Interslice (albeit through its director) has the wherewithal to finance its costs of the proceedings. It is noted that Ms Bakic has also previously asserted that Interslice will be in funds to meet any costs order.
In those circumstances, CCA submits that it cannot be said that an order for security will stifle the proceedings.
As noted above, CCA says that Interslice's claim is substantial, yet no undertaking to stand behind the company is proffered and that it would be unfair to deny CCA security for its costs, when those standing behind the company may benefit from the litigation without risk of an adverse costs order.
Pausing here, it is clear that Interslice does not have funds to pursue the litigation, and that Ms Bakic is not standing behind the company to offer security. I also consider that it cannot be said that the company's (and Ms Bakic's) financial woes are due solely to CCA's position in relation to the lease; although CCA's conduct cannot have helped in the early stages of the new lease period. Impecuniosity is a factor that counts, in my opinion, towards security being ordered.

[10]

Delay in bringing application for seeking costs

As to the timing of the application for security for costs (r 42.21(1A)(l) of the UCPR), Interslice places no little weight on delay in the present case. It is noted that delay will invariably be a relevant discretionary factor in any application for security for costs, but that the degree or extent of its relevance will vary according to the circumstances of any given case along a spectrum from the slight to the extreme (Interslice here citing PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [11] per Bell P and Simpson AJA).
Reference is made to Green v CGU Insurance (2008) 67 ACSR 105; [2008] NSWCA 148, where Hodgson JA (with whom Campbell JA agreed) held (at [57]): In my opinion, it is not necessary, in order for a plaintiff to show prejudice from delay, that the plaintiff prove what the plaintiff would have done if the application had been made earlier;… … In my opinion, where substantial costs have been incurred since the time when an application for security should have been brought, it would be unreasonable to deny the existence of prejudice unless the plaintiff can prove exactly what the plaintiff would have done if the application would have been brought earlier.
Interslice says that delay is a significant factor in this case. It is noted that the proceedings were commenced in the District Court in November 2020 and that CCA's defence was filed in the District Court on 16 February 2021. Interslice says that the proper time for an application of this kind was immediately after the filing of the defence (citing Eddy & Morphett v Mac Audio & Accoustical Consultants Pty Ltd [2000] SASC 145 at [49] per Lander J with whom Doyle CJ and Duggan J agreed). (I consider that case to be explicable by reference to its particular facts and I would not accept that there is a blanket, or even usual, rule that security for costs applications should necessarily be brought at the same time as a defence is filed.)
Interslice points out that its evidence in chief was filed and served by 7 September 2021; and that the notice of motion for security was not filed until 13 September 2021. It is noted that, pursuant to the orders made on 16 September 2021, CCA's evidence was initially due to be filed by 5 November 2021 but that this was extended on 11 November 2021 to 3 December 2021. It is said that, once CCA's evidence is filed and served, Interslice will only need a short time to file any evidence in reply before a hearing date can be obtained. (Thus, the proceedings can be seen to be relatively well advanced.)
Interslice submits that there has been substantial delay in bringing the application for security and that this (and the delay by CCA in serving evidence) should weigh against an order refusing security.
On the other hand, CCA says that the delay was reasonable and explicable - because it raised the issue of security for costs at an early stage but that it was not then clear if the proceedings would continue (apparently because of delay in providing particulars). Significantly, in my view, the impetus for revisiting the issue of security seems to have been CCA's appreciation that the matter had become "serious" in terms of the amount of loss claimed.
To my mind, that means that there was a forensic decision not to press for security for costs from at least March 2021 to July 2021. I do not suggest that it was not a reasonable decision not to press for security at a time when CCA may have thought nothing would come of the proceedings, or that the amount of potential damage would not justify such an application. Nevertheless, the making of that forensic decision must have had the effect that Interslice did not appreciate that security for costs remained a "live" issue thereafter; and would no doubt have incurred costs in preparing its own case without an understanding that security would need to be provided.
In other words, the decision not to press for security after March 2021 means that Interslice then incurred costs in pursuing the claim which it would (or may) not have done had the issue of security been pressed at that earlier time.
In that regard, there was evidence of at least some costs being incurred in the period after March 2021. I am troubled by the fact that, by CCA's forensic decision not to press for security for costs (even though this had been offered), Interslice may have continued to expend costs in pressing the proceedings without understanding that it would later have to provide security. That must, I think, be balanced against the fact that Ms Bakic stands behind the company but is not prepared (or able) to offer an undertaking to be responsible for its costs.

[13]

Quantum

CCA says that its actual costs will be in the order of $114,000 and seeks the sum of $90,000 as security.
CCA's solicitor, Mr Valmas, in his affidavit sworn 13 September 2021 estimated an amount of prospective costs of $137,379, and costs on an ordinary basis at $90,000. CCA obtained an expert report of Mr Taylor dated 3 November 2021 to opine on the reasonableness of that estimate. CCA says that Mr Taylor provides support for an amount on the ordinary basis of $133,172.25 (albeit that Mr Taylor has also included an amount of $18,542.25 of past costs). At [11.9] of his report, Mr Taylor provides his own breakdown of the likely costs, separating out those costs that are referable to the defence only.
CCA accepts that the amounts in [10.6] and in [11.10] in Mr Taylor's report are referable to past costs, which are not part of the quantum claimed in the present application. However, it is submitted the analysis at [8.2]-[10.6] of the report (which relates to past costs) are of weight or relevance in Mr Taylor's opinion to the reasonableness of, or in comparing, the reasonableness of the prospective costs. Otherwise, it is submitted that the table at [11.9] sets out a reasonable estimate of the prospective costs.
In particular, CCA says that: the estimate for discovery is reasonable as the financial records of Interslice will be central to its claim, and will require time to analyse; the two experts allowed for relate to quantum of Interslice's damages, as well as the planning issue (the latter issue said to arise in Interslice's claim as it is the basis on which CCA says it was not required to issue the lease); and the estimate of 3 days (as opposed to 2) is said to be a reasonable one, having regard to the pleadings, two expert witnesses and the expected volume of financial material.
Accordingly, CCA says that the figure for future costs set out at paragraph [11.10] is the appropriate figure (that is the future costs component, namely $114,630.00); and that on the ordinary basis, 85% of that figure is $97,435.50.

[14]

Other considerations

Interslice says that if security is to be ordered, no amount should be included for past costs given the delay in bringing the application (Southern Costs Exploration NL v Fire & All Risks Insurance (1985) 1 NSWLR 114 at 125D-G). That is not disputed by CCA and I agree that no security should here be given for past costs.
It is further said by Interslice that the amount of security for future costs (proposed at $90,000) is excessive for the reasons that: first, any amount should only be approximately 70% of the proposed costs; second (as set out in its solicitor's first and third affidavits), the costs of a number of items exceed what is required (such as discovery and expert evidence) and include costs that have already been incurred (such as briefing one expert in August 2021). Accordingly, it is submitted that, if security is ordered, then the amount should be only $26,678 (as calculated by its solicitor in her second affidavit at [3]).
In addition, it is submitted by Interslice that security should only be given for the pre-trial component now and for the trial component when the matter is set down for hearing (citing Pacific Acceptance Corporation Limited v Forsyth (no. 2) [1967] 2 NSWR 402; (1967) 85 WN Pt 1 (NSW) 715). As for the proposition that security should only be ordered up to the hearing, I am ordinarily of the view that the appropriate way to order security would be in tranches, which resolves that issue (which I address briefly below).
Ultimately, when the opposing contentions of the parties as to quantum were explored in the submissions at the hearing of the application, the gap between the parties narrowed. This was because it was agreed that past costs were not to be the subject of an order for security and that, if costs of the hearing were to be included, then the margin between the two parties' positions was much reduced.
If (as I accept is the case) it be assumed that disbursements are generally reasonable at a proportionality higher rate (say, approaching 90%), then the likelihood is that expert costs and counsel fees would largely be recoverable; and that this would encompass around $60,000-$70,000 of the estimated costs.
I accept that there is a live issue as to whether discovery would be ordered and as to its ambit (see Practice Note SC Eq 11). Hence, had I been prepared to order security for this component I would have concluded that any security for this component should not be payable until after discovery (if any) is ordered. (I note that Counsel for Interslice also suggested that discovery would be much narrower in scope than CCA contends and could be dealt with consensually.)
Further, insofar as there is a dispute as to whether the hearing will be fixed for two or three days, that will become known when the matter is listed for hearing. Thus, I consider that it would be appropriate to make any award for security for the costs of the hearing fixed at a daily basis to be determined when the matter is actually listed for hearing.
Had I ordered security for costs for the overall cost, I would have ordered it in tranches as follows: first, going forward, an amount to cover the costs of preparation up to trial, excluding discovery; an amount for discovery only once it was ordered (fixed as a proportion of the hourly rate for solicitors' time on that aspect of the matter); an amount for expert evidence; and an amount for the costs of hearing, only once fixed, at a daily amount of, say, $7,000 all up. It would also be appropriate to apply a discount to any such order.
As it is, and particularly having regard to the forensic decision that was made not to seek discovery at an earlier stage, I consider that the only amount that should be ordered for security (for the reasons set out above) should be $10,000 (for the damages expert) and an amount of say, $5,000, to brief and confer with that expert; together with an amount of $5,000 to allow for additional time at the hearing on that issue. As noted, I do not consider it appropriate in the circumstances to make an order now to cover costs of potential discovery. I have fixed those amounts on a broad-brush basis, having regard to the principles outlined above.
As there has been mixed success on the motion, costs should be costs in the cause.

Parties

Applicant/Plaintiff:

Interslice Pty Ltd

Respondent/Defendant:

CCA Investments - Bass Hill Pty Ltd

Legislation Cited (5)

Civil Procedure Act 2005(NSW)

Conveyancing Act 1919(NSW)

Corporations Act 2001(Cth)

Environmental Planning and Assessment Act 1979(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (20)

Judgment

HER HONOUR: Before me for hearing on 30 November 2021 was an application by the defendant, CCA Investments - Bass Hill Pty Ltd (CCA), for security for costs to be provided by the plaintiff, Interslice Pty Ltd (Interslice). Security is sought in the amount of $90,000, pursuant to s 1335 of the Corporations Act 2001 (Cth) (Corporations Act), r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the inherent jurisdiction of the Court. Interslice opposes the application but says that if any security should be ordered then it should be in a much lesser amount (approximately $26,678) and only up to the date of hearing (which has not yet been fixed).
There was no dispute as to the relevant principles applicable on an application for security for costs. Relevantly, the threshold question (as to which the applicant, CCA, bears the onus) is whether there is reason to believe that the plaintiff (Interslice) would be unable to pay the defendant's (CCA's) costs of defending the claim if it were to be ordered to do so, a test which is recognised as being undemanding (see Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 at [15]-[16]; Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 (Cornelius v Global) at [17], [56]-[59]). If the threshold test is satisfied, then discretionary considerations arise (as to which see below). Interslice accepts that CCA has satisfied the threshold test.
The underlying dispute in the proceeding is a claim by Interslice for damages and the return of a security bond of $30,000 in relation to the former lease by Interslice of part of a property at Bass Hill. That property is now owned by CCA (the property formerly being owned by City of Bankstown R. & S.L. Community Club Ltd). Interslice had operated a gym in the lower ground floor of the property from 16 October 2014. On any view of the matter, Interslice's lease of the lower ground floor of the premises came to an end in about April 2020. Interslice alleges that CCA repudiated the relevant contract (by failing for some eight months to deliver a lease in registrable form and, also, by the issue of a notice of breach of covenant). Interslice notified CCA that it accepted that repudiation on 7 April 2020, terminating the lease. Interslice claims damages for repudiation (being loss of profits over the five-year term of the lease) as well as damages for breach of the covenant of quiet enjoyment and implied term not to derogate from the grant of the lease. CCA maintains that it is Interslice which has repudiated the lease (by its purported termination thereof) and CCA has recently cross-claimed against Interslice, seeking damages (effectively, loss of rent) for what it contends was the wrongful repudiation by Interslice of the lease.

[1998] NSWSC 472

[2000] SASC 145

(1987) 16 FCR 497

(2004) 208 ALR 564

(1979) 22 SASR 20

(1995) 56 FCR 189

(2008) 20 VR 377

(1985) 1 NSWLR 114

(1987) 73 ALR 289

[2004] NSWSC 664

[2008] NSWCA 148

[2002] NSWCA 271