Christofi v Mohammady (RLD) [2013] NSWADTAP 10

Christofi v Mohammady (RLD) [2013] NSWADTAP 10

The Tribunal erred in law by finding that 15% of the ceiling was damaged without supporting evidence. The admissible evidence supported a damaged area of 4 square metres out of about 60 square metres, or 6.6%, and the photographs did not support the lessee's higher figures. Leave was granted for the appeal to extend to the merits, and applying the proportionate usability approach, the correct and preferable rent abatement was $2,499.06 for leakage plus $3,335.01 for building works, totalling $5,834.07. The costs rule that parties bear their own costs applied because the appellants did not succeed to the full extent sought and only a small amount was at stake.

Jurisdiction
Australia
Judgment Date
26 February 2013
Procedural Posture
Internal Appeal From Retail Leases Division Decision / Appeal Panel Decision
Outcome
Appeal allowed in part.
Legal Topics
['retail Lease' 'abatement of Rent' 'diminished Useability Due to Damage' 'water Leakage' 'quiet Enjoyment' 'costs of Appeal']
['administrative Law' 'retail Leases' 'property Law'] ['retail Lease' 'abatement of Rent' 'diminished Useability Due to Damage' 'water Leakage' 'quiet Enjoyment' 'costs of Appeal']

Case Brief

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Procedural Posture

Internal Appeal From Retail Leases Division Decision / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in awarding any compensation by way of rent abatement when that relief was not sought in the Application for Original Decision.' "Whether there was evidence to support the Tribunal's finding that 15% of the ceiling was damaged and not repaired." 'What amount of rent abatement was the correct and preferable decision for leakage damage and disturbance from nearby building works.' 'Whether the lessors should receive their costs of the appeal.']

Ratio Decidendi

The Tribunal erred in law by finding that 15% of the ceiling was damaged without supporting evidence. The admissible evidence supported a damaged area of 4 square metres out of about 60 square metres, or 6.6%, and the photographs did not support the lessee's higher figures. Leave was granted for the appeal to extend to the merits, and applying the proportionate usability approach, the correct and preferable rent abatement was $2,499.06 for leakage plus $3,335.01 for building works, totalling $5,834.07. The costs rule that parties bear their own costs applied because the appellants did not succeed to the full extent sought and only a small amount was at stake.

Court Disposition

Appeal allowed in part.

Orders

  • ['The appeal is allowed in part.' "In order 2 in the Tribunal's decision dated 22 June 2012, the amount ordered to be paid by the Respondents to the Applicant is reduced from $8,417.00 to $5,834.07." 'The parties are to bear their own costs of the appeal.']