Perpart Pty Limited v Foreman Material Pty Limited [2003] NSWADT 25

Perpart Pty Limited v Foreman Material Pty Limited [2003] NSWADT 25

The respondent was liable for repair and refurbishment because the lease required restoration of painted surfaces by repainting and repair of tenant-caused damage, the internal wall repairs were not done in a proper and craftsman-like manner, and the facade was damaged by the respondent's signage. However, the refurbishment claim was limited by the lessor's duty to mitigate to the amount of the respondent's painter's quotation. The claim for a month's rent in lieu of notice failed because, on the balance of probabilities, the tenant gave the requisite notice, or at least the lessor was aware the tenancy was ending.

Jurisdiction
Australia
Judgment Date
07 February 2003
Procedural Posture
Claim for Payment of Money / Principal; Final Decision
Outcome
Applicant partly successful; respondent ordered to pay repair and refurbishment costs; notice claim dismissed; no order for costs.
Legal Topics
['lease Refurbishment Obligations' 'repair of Leased Premises' 'holding Over and Notice of Termination' 'mitigation of Damage']
['retail Leases' 'property Law' 'contract Law'] ['lease Refurbishment Obligations' 'repair of Leased Premises' 'holding Over and Notice of Termination' 'mitigation of Damage']

Case Brief

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Procedural Posture

Claim for Payment of Money / Principal; Final Decision

Legal Issues

  1. 1 ['Whether the respondent lessee was liable for the cost of repainting, decorating and general refurbishment of the premises after vacating.' 'Whether the respondent lessee was liable for repairs to damage to the facade caused by signage.' "Whether the applicant lessor was entitled to a month's rent in lieu of notice upon termination of the holding over tenancy."]

Ratio Decidendi

The respondent was liable for repair and refurbishment because the lease required restoration of painted surfaces by repainting and repair of tenant-caused damage, the internal wall repairs were not done in a proper and craftsman-like manner, and the facade was damaged by the respondent's signage. However, the refurbishment claim was limited by the lessor's duty to mitigate to the amount of the respondent's painter's quotation. The claim for a month's rent in lieu of notice failed because, on the balance of probabilities, the tenant gave the requisite notice, or at least the lessor was aware the tenancy was ending.

Court Disposition

Applicant partly successful; respondent ordered to pay repair and refurbishment costs; notice claim dismissed; no order for costs.

Orders

  • ['Pursuant to Section 72(1)(a) Foreman Material Pty Limited is to pay to Perpart Pty Limited within 28 days of this date the sum of $1,865.00 being cost of repair and refurbishment (retiling and filling of facade and plaster filling of holes in internal walls, and redecorating by way of repainting the internal...