Demertjis & Anor v Chauhan (RLD) [2008] NSWADTAP 43

Demertjis & Anor v Chauhan (RLD) [2008] NSWADTAP 43

Clause 11.3.2 of the Lease obliged the lessors to provide reasonable access to shared toilet and running water facilities within the building. The lessors were liable because, even if Cash Wise created the obstruction, it was in an area over which the lessors retained control and they could have corrected or terminated the obstruction. However, the Tribunal erred in its damages reasoning by treating lost wages and lost profits as independent categories instead of assessing the lessee's loss as a lost opportunity to derive profits. The correct and preferable damages award was $13,500, comprising $7,000 for lost opportunity to generate profits, $2,000 for takeaway beverage costs, and $4,500...

Jurisdiction
Australia
Judgment Date
22 July 2008
Procedural Posture
Appeal Under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 Concerning a Retail Lease Dispute / Appeal Panel Review From Chauhan V Demertjis & Anor [2008] NSWADT 41; Leave Granted for the Appeal to Extend to a Review of the Merits
Outcome
Appeal allowed in part; damages reduced from $25,000 to $13,500.
Legal Topics
['landlord Obligation to Provide Access to Shared Facilities' 'quiet Enjoyment' 'breach of Retail Lease' 'loss of Opportunity to Derive Profits' 'non Pecuniary Damages for Stress' 'costs in Tribunal Proceedings']
['retail Leases' 'contract Law' 'administrative Tribunal Appeals' 'damages'] ['landlord Obligation to Provide Access to Shared Facilities' 'quiet Enjoyment' 'breach of Retail Lease' 'loss of Opportunity to Derive Profits' 'non Pecuniary Damages for Stress' 'costs in Tribunal Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 Concerning a Retail Lease Dispute / Appeal Panel Review From Chauhan V Demertjis & Anor [2008] NSWADT 41; Leave Granted for the Appeal to Extend to a Review of the Merits

Legal Issues

  1. 1 ['Whether clause 11.3.2 of the Lease obliged the lessors to ensure the lessee had access to toilet and running water facilities outside the demised premises but within the same building.' 'Whether the lessors were liable in damages where another tenant, Cash Wise, obstructed access to the toilet and running water facilities.' 'Whether the Tribunal erred in assessing damages by treating lost wages and lost profits as independent heads of financial loss rather than assessing loss of an opportunity to derive profit.' "Whether the lessee's failure to call witnesses, including Sunita and other shop minders, affected proof of damages." 'What amount of damages was the correct and preferable decision on merits.']

Ratio Decidendi

Clause 11.3.2 of the Lease obliged the lessors to provide reasonable access to shared toilet and running water facilities within the building. The lessors were liable because, even if Cash Wise created the obstruction, it was in an area over which the lessors retained control and they could have corrected or terminated the obstruction. However, the Tribunal erred in its damages reasoning by treating lost wages and lost profits as independent categories instead of assessing the lessee's loss as a lost opportunity to derive profits. The correct and preferable damages award was $13,500, comprising $7,000 for lost opportunity to generate profits, $2,000 for takeaway beverage costs, and $4,500...

Court Disposition

Appeal allowed in part; damages reduced from $25,000 to $13,500.

Orders

  • ['Leave is granted for the appeal to extend to a review of the merits.' 'The appeal is allowed in part.' "Order 1 in the Tribunal's decision of 4 February 2008 is set aside and the following order substituted: 'The Respondent landlord is to pay the Applicant tenant the sum of $13,500.00 by way of damages.'" "Any...