Prsa & anor -v- Polymeris [2000] NSWADT 108

Prsa & anor -v- Polymeris [2000] NSWADT 108

The tenants' sale-loss claim failed because the interested purchaser sought a new lease, not an assignment, and there was no legal basis to infer liability from a hypothetical refusal to approve an assignment. The quiet enjoyment claim failed because the lessor ceased regular visits once formally requested and no compensable loss was established. The cross-claim failed because the remaining alleged defects were fair wear and tear or lacked merit. Costs were limited to the expense of the lessor obtaining Mr Edmunds' expert report because that cost was made necessary by the legally flawed consent-to-assignment claim.

Jurisdiction
Australia
Judgment Date
11 August 2000
Procedural Posture
Claim for Payment of Money Jurisdiction / Principal Matter
Outcome
Application dismissed; cross claim dismissed; limited costs order in favour of the respondent for the costs of obtaining the Edmunds affidavit of 2 June 2000.
Legal Topics
['assignment of Lease' 'covenant of Quiet Enjoyment' 'make Good Obligations' 'fair Wear and Tear' 'tribunal Costs' 'thrown Away Costs']
['retail Leases' 'property Law' 'costs'] ['assignment of Lease' 'covenant of Quiet Enjoyment' 'make Good Obligations' 'fair Wear and Tear' 'tribunal Costs' 'thrown Away Costs']

Case Brief

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Procedural Posture

Claim for Payment of Money Jurisdiction / Principal Matter

Legal Issues

  1. 1 ["Whether the lessor was liable for loss of the tenants' sale of business where the prospective purchaser wanted a new lease rather than an assignment of the existing lease." "Whether the lessor's visits and comments amounted to a breach of the covenant of quiet enjoyment causing compensable loss." 'Whether the tenants failed to leave the premises in good condition, fair wear and tear excepted.' 'Whether special circumstances warranted an award of costs under s 88 of the Administrative Decisions Tribunal Act 1997.' 'Whether the Suitors Fund Act s.7 applied to costs incurred when the first listed hearing date did not proceed.']

Ratio Decidendi

The tenants' sale-loss claim failed because the interested purchaser sought a new lease, not an assignment, and there was no legal basis to infer liability from a hypothetical refusal to approve an assignment. The quiet enjoyment claim failed because the lessor ceased regular visits once formally requested and no compensable loss was established. The cross-claim failed because the remaining alleged defects were fair wear and tear or lacked merit. Costs were limited to the expense of the lessor obtaining Mr Edmunds' expert report because that cost was made necessary by the legally flawed consent-to-assignment claim.

Court Disposition

Application dismissed; cross claim dismissed; limited costs order in favour of the respondent for the costs of obtaining the Edmunds affidavit of 2 June 2000.

Orders

  • ['Application dismissed' 'Cross Claim dismissed' "Applicant to pay Respondent's costs of obtaining the affidavit by Edmunds of 2 June 2000"]