Mohammady v Christofi [2012] NSWADT 122

Mohammady v Christofi [2012] NSWADT 122

The Respondents breached the lease obligations to provide quiet enjoyment and maintain the roof because water leakage damaged the ceiling and stock and left part of the premises effectively unusable for a prolonged period, and the Respondents also allowed arcade works that disturbed the Applicant's quiet enjoyment without giving notice under section 33 of the Retail Leases Act 1994. The Applicant could not recover under section 34 because no written request was provided until after the works had been completed, and most claimed losses were not properly proved. However, applying the lease, section 36 of the Retail Leases Act 1994, and section 73(2) of the Administrative Decisions Tribunal...

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Retail Lease Dispute in the Retail Leases Division Concerning Water Leakage, Construction Works, Quiet Enjoyment, Compensation and Rent Abatement / Original Decision; Principal Judgment
Outcome
Application allowed in part; the Respondents were ordered to pay compensation for loss of stock and garments, rent abatement, and 50% of the Applicant's costs.
Legal Topics
['covenant for Quiet Enjoyment' "lessor's Repair Obligations" 'damaged Premises and Rent Abatement' 'compensation for Disturbance' 'notice of Alterations and Refurbishment' 'proof and Quantification of Loss' 'costs in Tribunal Proceedings']
['retail Leases' 'property Law' 'contract Law' 'administrative Tribunal Procedure'] ['covenant for Quiet Enjoyment' "lessor's Repair Obligations" 'damaged Premises and Rent Abatement' 'compensation for Disturbance' 'notice of Alterations and Refurbishment' 'proof and Quantification of Loss' 'costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Retail Lease Dispute in the Retail Leases Division Concerning Water Leakage, Construction Works, Quiet Enjoyment, Compensation and Rent Abatement / Original Decision; Principal Judgment

Legal Issues

  1. 1 ["Whether water leaking through the roof and damage to the ceiling breached the Respondents' obligations under the lease and the covenant for quiet enjoyment." "Whether construction works in the arcade and the placement of a container interfered with the Applicant's quiet enjoyment or trading." 'Whether the Applicant was entitled to compensation under sections 33, 34 or 36 of the Retail Leases Act 1994 or under the lease.' 'Whether the Applicant proved loss of stock and garments, damage to machinery and furniture, business interruption loss, and loss of goodwill or future prospects.' 'Whether rent should be abated because part of the premises was unusable or useability was diminished.' 'Whether costs should be awarded.']

Ratio Decidendi

The Respondents breached the lease obligations to provide quiet enjoyment and maintain the roof because water leakage damaged the ceiling and stock and left part of the premises effectively unusable for a prolonged period, and the Respondents also allowed arcade works that disturbed the Applicant's quiet enjoyment without giving notice under section 33 of the Retail Leases Act 1994. The Applicant could not recover under section 34 because no written request was provided until after the works had been completed, and most claimed losses were not properly proved. However, applying the lease, section 36 of the Retail Leases Act 1994, and section 73(2) of the Administrative Decisions Tribunal...

Court Disposition

Application allowed in part; the Respondents were ordered to pay compensation for loss of stock and garments, rent abatement, and 50% of the Applicant's costs.

Orders

  • ['The Respondents to pay to the Applicant the sum of $2,450.00 as compensation for loss of stock and garments.' 'The Respondents to pay to the Applicant the sum of $8,417.00 by way of abatement of rent.' "The Respondents to pay 50% of the Applicant's costs as are agreed or assessed upon a party/party basis."]