Lee v YOUth OK Pty Ltd (No. 2) [2022] NSWSC 1691

Lee v YOUth OK Pty Ltd (No. 2) [2022] NSWSC 1691

Damages for post-26 February 2022 period must be reduced by amount plaintiff would have earned had she taken reasonable steps to mitigate loss, specifically by leasing three residential flats for twelve weeks at $500/week. Costs are awarded on ordinary basis, not indemnity basis, as lease does not provide clear and unambiguous reversal of onus of proof. Interest on costs is awarded at the statutory prescribed rate under the Civil Procedure Act, not at the contractual rate.

Parties
Plaintiff: Annie Lee; First Defendant: YOUth OK Pty Ltd ACN 634 484 674; Second Defendant: David Charles Hawkins
Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Equity Proceeding / Post First Judgment, Calculation of Damages and Costs
Outcome
Damages awarded to plaintiff for post-26 February 2022 period reduced by mitigation finding; ordinary costs awarded; interest on costs ordered at statutory rates; indemnity costs not awarded; judgment stayed until 30 January 2023.
Legal Topics
Calculation of Damages for Breach of Lease, Mitigation of Loss Under Lease, Costs Orders—ordinary Vs Indemnity Basis, Interest on Costs
Leases and Tenancies Costs Calculation of Damages for Breach of Lease Mitigation of Loss Under Lease Costs Orders—ordinary Vs Indemnity Basis Interest on Costs

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Parties

Annie Lee

Plaintiff

YOUth OK Pty Ltd ACN 634 484 674

First Defendant

David Charles Hawkins

Second Defendant

Procedural Posture

Equity Proceeding / Post First Judgment, Calculation of Damages and Costs

Legal Issues

  1. 1 Whether plaintiff satisfied lease obligation to mitigate loss for period after repossession
  2. 2 Calculation of damages for balance of lease term and post-repossession period
  3. 3 Whether plaintiff entitled to indemnity costs under the lease

Ratio Decidendi

Damages for post-26 February 2022 period must be reduced by amount plaintiff would have earned had she taken reasonable steps to mitigate loss, specifically by leasing three residential flats for twelve weeks at $500/week. Costs are awarded on ordinary basis, not indemnity basis, as lease does not provide clear and unambiguous reversal of onus of proof. Interest on costs is awarded at the statutory prescribed rate under the Civil Procedure Act, not at the contractual rate.

Court Disposition

Damages awarded to plaintiff for post-26 February 2022 period reduced by mitigation finding; ordinary costs awarded; interest on costs ordered at statutory rates; indemnity costs not awarded; judgment stayed until 30 January 2023.

Orders

  • Judgment for principal sum of $99,911.18 for damages from 27 February to 30 September 2022 (originally $117,911.18 less $18,000 for mitigation)
  • Plaintiff to provide calculation of interest up to judgment at 10% per lease on amounts due and unpaid