Despot v Dublin Group Pty Ltd [2014] NSWCATCD 39

Despot v Dublin Group Pty Ltd [2014] NSWCATCD 39

The Tribunal found on the balance of probabilities that there was no agreement to defer rental beyond 30 June 2012 and that, even if there had been an oral agreement, it was not effective to vary the written lease. Rent was payable for 8 months from 1 July 2012 to 28 February 2013 in the amount of $76,266.56. The Tribunal accepted that the tenant paid $22,000.00, leaving unpaid rent of $54,266.56 for which the tenant and guarantor were liable. The outgoings claim failed because the landlord had not requested payment as required by the lease and had not proved the outgoings claimed. Interest was payable under the lease, although the evidence did not allow the Tribunal to calculate the amount.

Jurisdiction
Australia
Judgment Date
27 March 2014
Procedural Posture
Retail Lease Rental, Outgoings and Interest Claim / Principal Judgment After Hearing
Outcome
Application allowed in part; respondents ordered to pay unpaid rent and interest, outgoings claim not established, and costs application directions made.
Legal Topics
['unpaid Rent' 'outgoings' 'oral Variation of Lease' "lessor's Disclosure Statement" 'interest Under Lease' 'costs']
['retail Leases' 'property Law' 'contract Law'] ['unpaid Rent' 'outgoings' 'oral Variation of Lease' "lessor's Disclosure Statement" 'interest Under Lease' 'costs']

Case Brief

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Procedural Posture

Retail Lease Rental, Outgoings and Interest Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the parties agreed that rent was not payable until the restaurant and bar commenced trading and whether any such agreement varied the lease.' 'What total rental payments the tenant made to the landlord.' 'Whether the tenant and guarantor were liable for outgoings for 1 July 2012 to 28 February 2013.' 'Whether the tenant had paid all amounts payable under the lease.' 'Whether interest was payable on unpaid rent.' 'How the costs application should be dealt with.']

Ratio Decidendi

The Tribunal found on the balance of probabilities that there was no agreement to defer rental beyond 30 June 2012 and that, even if there had been an oral agreement, it was not effective to vary the written lease. Rent was payable for 8 months from 1 July 2012 to 28 February 2013 in the amount of $76,266.56. The Tribunal accepted that the tenant paid $22,000.00, leaving unpaid rent of $54,266.56 for which the tenant and guarantor were liable. The outgoings claim failed because the landlord had not requested payment as required by the lease and had not proved the outgoings claimed. Interest was payable under the lease, although the evidence did not allow the Tribunal to calculate the amount.

Court Disposition

Application allowed in part; respondents ordered to pay unpaid rent and interest, outgoings claim not established, and costs application directions made.

Orders

  • ['The respondents must pay the applicant a sum of $54,266.56 for unpaid rent.' 'In addition, the respondents must pay the applicant interest on the unpaid rent calculated in accordance with Clause 5.1.5 of Annexure B and item 15 of annexure A to the Lease between the applicant landlord and the respondents in respect...