Miljus v Guests Cakes & Pies Pty Ltd [2011] NSWADT 193

Miljus v Guests Cakes & Pies Pty Ltd [2011] NSWADT 193

The lessee failed to prove that the lessor made any knowingly false or misleading pre-lease representation inducing entry into the lease, and most alleged defects were not shown to found compensation or non-liability for rent. However, the lessor knew the awning leaked and, after the lessee's written notice on 27 April 2009, failed to take reasonable steps to rectify a problem that significantly disrupted trading. Because the lessee did not satisfactorily prove quantified losses, the appropriate relief was total abatement of rent from 27 April 2009, leaving rent arrears, outgoings and interest payable before that date.

Jurisdiction
Australia
Judgment Date
11 August 2011
Procedural Posture
Retail Lease Dispute Involving Lessor's Claim for Unpaid Rent and Outgoings and Lessee's Cross Claim for Compensation / Principal Judgment After Hearing
Outcome
The lessor's claim succeeded in part; the lessee's cross-claim succeeded only to the extent of rent abatement from 27 April 2009; no costs order unless submissions were filed.
Legal Topics
['pre Lease Representations' 'lessor Disclosure Statement' 'compensation for Disruption to Trade' 'rent Arrears' 'outgoings' 'interest' 'costs']
['retail Leases' 'contract' 'administrative Law'] ['pre Lease Representations' 'lessor Disclosure Statement' 'compensation for Disruption to Trade' 'rent Arrears' 'outgoings' 'interest' 'costs']

Case Brief

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Procedural Posture

Retail Lease Dispute Involving Lessor's Claim for Unpaid Rent and Outgoings and Lessee's Cross Claim for Compensation / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the lessor made false or misleading pre-lease representations under section 10 of the Retail Leases Act giving rise to compensation.' "Whether the lessor's failure to provide a disclosure statement gave the lessee any remedy beyond the statutory right to terminate within six months under section 11(2)." 'Whether defects in the premises, including water, plumbing, electrical, screening and awning problems, rendered the lessee not liable for rent or entitled to compensation.' 'Whether the leaking awning caused significant disruption of trade and whether the lessor failed to rectify it after written notice under section 34(1)(d).' 'What rent, outgoings and interest were payable after allowing for abatement from 27 April 2009.' 'Whether any costs order should be made.']

Ratio Decidendi

The lessee failed to prove that the lessor made any knowingly false or misleading pre-lease representation inducing entry into the lease, and most alleged defects were not shown to found compensation or non-liability for rent. However, the lessor knew the awning leaked and, after the lessee's written notice on 27 April 2009, failed to take reasonable steps to rectify a problem that significantly disrupted trading. Because the lessee did not satisfactorily prove quantified losses, the appropriate relief was total abatement of rent from 27 April 2009, leaving rent arrears, outgoings and interest payable before that date.

Court Disposition

The lessor's claim succeeded in part; the lessee's cross-claim succeeded only to the extent of rent abatement from 27 April 2009; no costs order unless submissions were filed.

Orders

  • ['Guest Cakes Pty Ltd, Simon Goldman and Beverley Goldman are to pay the sum of $17,355.08 to Milan Miljus.' 'Unless either party files and serves any submissions within 14 days of the date of these orders seeking an order for costs, there will be no order as to costs. If submissions seeking costs are filed by...