Stefopoulos v Manikas (no.2) [2004] NSWADT 127

Stefopoulos v Manikas (no.2) [2004] NSWADT 127

The Application was dismissed because, although the Respondents had an obligation to maintain the roof and failed to ensure it did not leak, the evidence did not establish substantial interference amounting to breach of quiet enjoyment or non-derogation from grant, nor did it prove the extent of any loss or damage caused by any breach of section 34(1)(d). The Applicant's evidence was unreliable, and the loss of business flowed from the Respondents' lawful exclusion of the Applicant following his defaults under fundamental terms of the Lease and his failure to remedy those defaults, not from the Respondents' failure to repair.

Jurisdiction
Australia
Judgment Date
28 June 2004
Procedural Posture
Retail Tenancy Claim for Declarations Under a Retail Shop Lease and Payment of Money / Principal Matter
Outcome
Application dismissed.
Legal Topics
['capital Costs Under Retail Shop Lease' 'lessee Compensation for Disturbance' 'quiet Enjoyment' 'non Derogation From Grant' 're Entry and Termination for Default' 'proof of Loss or Damage']
['retail Leases' 'property Law' 'contract Law' 'damages'] ['capital Costs Under Retail Shop Lease' 'lessee Compensation for Disturbance' 'quiet Enjoyment' 'non Derogation From Grant' 're Entry and Termination for Default' 'proof of Loss or Damage']

Case Brief

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Procedural Posture

Retail Tenancy Claim for Declarations Under a Retail Shop Lease and Payment of Money / Principal Matter

Legal Issues

  1. 1 ['Whether clauses 6(4), 6(6), 6(9) or the lease otherwise required the lessee to pay amounts in respect of capital costs contrary to section 23 of the Retail Leases Act 1994.' 'Whether the Respondents were liable to undertake works stipulated in the Queanbeyan City Council notice relating to breaches of the Food Act 1989 and Food Regulations 1997.' "Whether the Respondents breached section 34(1)(d) of the Retail Leases Act 1994 by failing to take reasonable steps to prevent or stop significant disruption or adverse effect on the Applicant's trading attributable to causes within their control." 'Whether the Applicant was entitled to damages for loss of the business.' 'Whether the Respondents lawfully re-entered and excluded the Applicant from the Premises because of defaults under the Lease.']

Ratio Decidendi

The Application was dismissed because, although the Respondents had an obligation to maintain the roof and failed to ensure it did not leak, the evidence did not establish substantial interference amounting to breach of quiet enjoyment or non-derogation from grant, nor did it prove the extent of any loss or damage caused by any breach of section 34(1)(d). The Applicant's evidence was unreliable, and the loss of business flowed from the Respondents' lawful exclusion of the Applicant following his defaults under fundamental terms of the Lease and his failure to remedy those defaults, not from the Respondents' failure to repair.

Court Disposition

Application dismissed.

Orders

  • ['The Application is dismissed.' "Each party is invited to file written submissions parties in relation to the issues of costs. Any submissions on behalf of the Respondents are to be filed and served within 14 days of the date of this decision. Any submissions on behalf of the Applicant are to be filed and served...