Diagne v Payman [2011] NSWADT 206

Diagne v Payman [2011] NSWADT 206

The Tribunal found that the 10 June 2010 settlement agreement extinguished all claims relating to rent and outgoings up to that date, regardless of whether they had been formally notified. The market rent reduction applied only prospectively. The lessee had failed to provide a required bank guarantee and was liable for the quantified arrears and a portion of the lessor's costs. The lessee's claim for misleading and deceptive conduct was unsupported by evidence and dismissed; claims for repairs lacked merit given lease obligations and evidence. The lessor was not entitled to immediate possession at this stage, conditional on lessee's further compliance.

Jurisdiction
Australia
Judgment Date
31 August 2011
Procedural Posture
Application and Cross Application (retail Leases) / Final Decision After Hearing
Outcome
Substantive orders made for payment of arrears, provision of guarantee, interest, and partial costs; lessee's claims dismissed; lessor's claim for immediate possession dismissed, subject to certain conditions.
Legal Topics
['retail Leases' 'misleading and Deceptive Conduct' 'outgoings Disputes' 'settlement Agreements' 'repairs and Maintenance' 'costs']
['commercial Law' 'tenancy Law'] ['retail Leases' 'misleading and Deceptive Conduct' 'outgoings Disputes' 'settlement Agreements' 'repairs and Maintenance' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application and Cross Application (retail Leases) / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the lessee was liable for arrears of rent and outgoings under the lease' 'Whether the lessee was entitled to relief for alleged misleading and deceptive conduct by the lessor' 'Effect of prior settlement agreements on outstanding liabilities' 'Whether the lessee was entitled to repair orders in respect of the premises' 'Whether the lessor was entitled to immediate possession due to breach' 'Calculation of credits and arrears, including land tax and insurance']

Ratio Decidendi

The Tribunal found that the 10 June 2010 settlement agreement extinguished all claims relating to rent and outgoings up to that date, regardless of whether they had been formally notified. The market rent reduction applied only prospectively. The lessee had failed to provide a required bank guarantee and was liable for the quantified arrears and a portion of the lessor's costs. The lessee's claim for misleading and deceptive conduct was unsupported by evidence and dismissed; claims for repairs lacked merit given lease obligations and evidence. The lessor was not entitled to immediate possession at this stage, conditional on lessee's further compliance.

Court Disposition

Substantive orders made for payment of arrears, provision of guarantee, interest, and partial costs; lessee's claims dismissed; lessor's claim for immediate possession dismissed, subject to certain conditions.

Orders

  • ['The lessee Mohamed Diagne is to pay the lessor Farid Payman the sum of $20,403.09 in arrears as at 15 June 2011, plus any further rent/outgoings due up to the decision date.' 'The lessee is to pay the lessor $342.38 in interest at 8.75% per annum for the period 15 June 2011 to decision date.' "The lessee's...