Chauhan v Demertjis and anor [2008] NSWADT 41

Chauhan v Demertjis and anor [2008] NSWADT 41

The landlord was in breach of the Lease and the tenant's right of quiet enjoyment by failing for about 90 weeks to make arrangements for access to toilet facilities which the tenant was entitled to assume were available as common facilities. The breach was a substantial interference in the circumstances of a small shop likely to be operated by one person, and a global award of $25,000 was appropriate to compensate for wasted wages during closures, lost profit opportunity, beverage expenditure and solatium. Claims for rear loading and rubbish storage access failed because the Applicant's evidence did not establish that those facilities had been held out to her, and the cracked-door claim...

Jurisdiction
Australia
Judgment Date
04 February 2008
Procedural Posture
Retail Lease Dispute / Principal Matter
Outcome
Application allowed in part; damages awarded to the Applicant for breach of quiet enjoyment, consent orders made about the bicycle rack, liberty to apply granted, and costs submissions permitted.
Legal Topics
['quiet Enjoyment' 'common Facilities' 'toilet Access' 'mitigation of Loss' 'solatium' 'retail Lease Damages' 'costs Orders']
['retail Leases' 'property Law' 'contract' 'damages' 'costs'] ['quiet Enjoyment' 'common Facilities' 'toilet Access' 'mitigation of Loss' 'solatium' 'retail Lease Damages' 'costs Orders']

Case Brief

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Procedural Posture

Retail Lease Dispute / Principal Matter

Legal Issues

  1. 1 ['Whether the Respondents breached the Lease by failing to provide the Applicant with access to toilet facilities shared in common with other persons.' 'Whether the Applicant was entitled to compensation for lack of toilet access over about 90 weeks.' 'Whether the Applicant was entitled to compensation for the cracked door, absence of rear unloading access, and location of light switches.' 'Whether costs should be ordered in respect of directions hearings.']

Ratio Decidendi

The landlord was in breach of the Lease and the tenant's right of quiet enjoyment by failing for about 90 weeks to make arrangements for access to toilet facilities which the tenant was entitled to assume were available as common facilities. The breach was a substantial interference in the circumstances of a small shop likely to be operated by one person, and a global award of $25,000 was appropriate to compensate for wasted wages during closures, lost profit opportunity, beverage expenditure and solatium. Claims for rear loading and rubbish storage access failed because the Applicant's evidence did not establish that those facilities had been held out to her, and the cracked-door claim...

Court Disposition

Application allowed in part; damages awarded to the Applicant for breach of quiet enjoyment, consent orders made about the bicycle rack, liberty to apply granted, and costs submissions permitted.

Orders

  • ['The Respondent landlord is to pay the Applicant tenant, by way of damages for breach of right of quiet enjoyment, the sum of $25,000.00.' 'By consent, the Respondent landlord acknowledges obligation to keep "Cash Wise" bike rack located in the area identified in a plan, a copy of which has been identified and...