Ellis’s Town House Pty Ltd v Botan Pty Ltd

[2017] NSWCA 20

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Leave to appeal
3. › District Court judgment
4. › Amount less than statutory threshold
5. › Whether issue of principle or question of general importance
6. › Whether reasonably clear injustice
7. › Proportionality of costs to amount in dispute
8. › District Court Act 1973 (NSW), s 127(2)(c)
9. › Civil Procedure Act 2005 (NSW), ss 56, 58, 60
1. Damages
2. › Breach of contract
3. › Measure of damages
4. › Cost of cure versus difference in value
5. › Breach of lessor's painting and repairing covenants
6. › Whether cost of cure available where plaintiff has not yet incurred expenditure
7. › Whether leased premises constitute a marketable commodity
1. Landlord and Tenant
2. › Covenants
3. › Lessor's covenant to paint and repair
4. › Breach of covenant to maintain premises in good condition and serviceable repair
5. › Breach of covenant to paint and varnish
6. › Damages for breach
7. › Whether efficient breach doctrine applies

Quick Take

A lessee claiming damages for breach of a lessor's painting and repairing covenants may recover on a cost of cure basis even where the lessee has not yet incurred the expenditure of remedying the lessor's defaults. The lessor's interest in maintaining premises in good condition is not a 'marketable commodity' susceptible to a difference in value analysis. The doctrine of efficient breach does not apply to defeat such a claim.