Giardini and ors v Blandino and ors [2008] NSWADT 66

Giardini and ors v Blandino and ors [2008] NSWADT 66

The Respondents wrongfully repudiated the lease because the car parking allocation was known to them before they entered the lease, the Applicants' April 2005 reaffirmation of that allocation was not a new post-commencement action or event inhibiting access or disrupting trade for section 34 of the Retail Leases Act 1994, no written request for rectification was made, and clause 11 of the lease did not justify termination. The Applicants were entitled to damages, but their damages were reduced because they acted unreasonably in minimising loss by advertising the premises for a substantially increased rent without evidence or explanation justifying that figure.

Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Retail Leases Division Claim for Declaration of Rights, Obligations and Liabilities Under a Lease and Claim for Payment of Money / Principal Matter After Hearing
Outcome
In proceedings number 075086 the Application was dismissed; in proceedings number 075023 the Respondents were ordered to pay the Applicants $39,692.76, with costs submissions permitted.
Legal Topics
['termination of Lease' 'repudiation' 'common Facilities and Car Parking' 'compensation Under Retail Leases Act 1994' 'mitigation of Loss' 'interest']
['retail Leases' 'contract' 'damages'] ['termination of Lease' 'repudiation' 'common Facilities and Car Parking' 'compensation Under Retail Leases Act 1994' 'mitigation of Loss' 'interest']

Case Brief

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Procedural Posture

Retail Leases Division Claim for Declaration of Rights, Obligations and Liabilities Under a Lease and Claim for Payment of Money / Principal Matter After Hearing

Legal Issues

  1. 1 ['Whether the Respondents were entitled to terminate the lease because the Applicants allocated only one rear car parking space to them and two spaces to the adjoining tenant.' 'Whether section 34 of the Retail Leases Act 1994 or clause 11 of the lease assisted the Respondents in asserting valid termination.' 'Whether Special Condition 1(c) was void to the extent alleged to contravene section 34 of the Retail Leases Act 1994.' 'Whether the Applicants breached the lease or the Retail Leases Act 1994 by failing to register the lease or repair stairs, where those grounds were not pursued at the hearing.' 'Whether the Applicants acted unreasonably in failing to minimise loss after the Respondents vacated the premises.' "What damages and interest were payable for the Respondents' wrongful repudiation of the lease."]

Ratio Decidendi

The Respondents wrongfully repudiated the lease because the car parking allocation was known to them before they entered the lease, the Applicants' April 2005 reaffirmation of that allocation was not a new post-commencement action or event inhibiting access or disrupting trade for section 34 of the Retail Leases Act 1994, no written request for rectification was made, and clause 11 of the lease did not justify termination. The Applicants were entitled to damages, but their damages were reduced because they acted unreasonably in minimising loss by advertising the premises for a substantially increased rent without evidence or explanation justifying that figure.

Court Disposition

In proceedings number 075086 the Application was dismissed; in proceedings number 075023 the Respondents were ordered to pay the Applicants $39,692.76, with costs submissions permitted.

Orders

  • ['In proceedings number 075086, the Application is dismissed' 'In proceedings number 075023, order that the Respondents pay to the Applicants the sum of $39,692.76' 'Either party may file submissions regarding costs within twenty one days and, if so filed the other party to file any submissions in response within a...