Fares & ors v Bleakley & anor [2005] NSWADT 230

Fares & ors v Bleakley & anor [2005] NSWADT 230

The Tribunal found no knowing false or misleading representation by the respondents as to lettable area, permitted use, lease term/options, or licensed seating capacity. The applicant failed to establish grounds for damages. The Tribunal found the premises became unusable due to an inherent defect in waterproofing for which the lessee was not responsible, entitling the applicant to rent abatement from when trading ceased until lease termination. Outgoings apportioned were incorrect and the applicant was owed a refund. The lease was validly terminated upon re-entry by the lessor on 16 March 2004.

Parties
Applicant / Cross Respondent: Ghassan Fares; Applicant / Cross Respondent: Jittmia Chawalittara; Applicant / Cross Respondent: Kektanok Roongsawang; Applicant / Cross Respondent: Jutarpon Channoom; Respondent / Cross Applicant: Robert John Bleakley; Respondent / Cross Applicant: Shala Pty Limited
Jurisdiction
Australia
Judgment Date
11 October 2005
Procedural Posture
Tribunal Determination / Final Principal Decision After Contested Hearing
Outcome
Applicant's claims for damages dismissed; declarations and refund in part granted. Respondents' cross-claims dismissed. Costs reserved subject to further submissions.
Legal Topics
Misrepresentation, Lease Termination, Outgoings Apportionment, Repairs and Maintenance Obligations, Damages, Assignment of Lease, Rent Abatement
Property Law Retail Leasing Contract Law Misrepresentation Lease Termination Outgoings Apportionment Repairs and Maintenance Obligations Damages +2 more

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 6 Authorities cited 5 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Ghassan Fares

Applicant / Cross Respondent

Jittmia Chawalittara

Applicant / Cross Respondent

Kektanok Roongsawang

Applicant / Cross Respondent

Jutarpon Channoom

Applicant / Cross Respondent

Robert John Bleakley

Respondent / Cross Applicant

Shala Pty Limited

Respondent / Cross Applicant

Procedural Posture

Tribunal Determination / Final Principal Decision After Contested Hearing

Legal Issues

  1. 1 Whether the respondents made false and misleading representations under the Retail Leases Act 1994.
  2. 2 Whether the applicant is entitled to damages for loss of sale/loss of income.
  3. 3 Whether the lease was properly terminated and whether rent is abated from date of unusability.

Ratio Decidendi

The Tribunal found no knowing false or misleading representation by the respondents as to lettable area, permitted use, lease term/options, or licensed seating capacity. The applicant failed to establish grounds for damages. The Tribunal found the premises became unusable due to an inherent defect in waterproofing for which the lessee was not responsible, entitling the applicant to rent abatement from when trading ceased until lease termination. Outgoings apportioned were incorrect and the applicant was owed a refund. The lease was validly terminated upon re-entry by the lessor on 16 March 2004.

Court Disposition

Applicant's claims for damages dismissed; declarations and refund in part granted. Respondents' cross-claims dismissed. Costs reserved subject to further submissions.

Orders

  • Applicant's claims for damages for misrepresentation, loss of business sale, and loss of income dismissed.
  • Declaration: no rent is payable from 15 October 2004 until 31 March 2005.