BBL International Pty Ltd v Tsiakos & Kolovos [2023] NSWCATCD 22

BBL International Pty Ltd v Tsiakos & Kolovos [2023] NSWCATCD 22

The Tribunal found that the premises were damaged by water ingress through besser block walls, that the lessee's 6 July 2022 letter was a request under clause 8.2.4, and that photographs sent on 25 July 2022 showed the damage had not been repaired within the specified period. The lessee was therefore entitled to give 7 days notice and the lease terminated on 3 August 2022. The permitted use, floor covering sales, corresponded with 'Floor covering shops' in Schedule 1 of the Retail Leases Regulation 2022, so the premises were a retail shop. Because the lessee was not liable for rent from 2 February to 3 August 2022, the lessors had no right to convert the $38,500 bank guarantee or retain...

Jurisdiction
Australia
Judgment Date
22 February 2023
Procedural Posture
Retail Lease Application / Principal Judgment After Hearing
Outcome
Application allowed in part; respondents ordered to pay the applicant $51,333.34 immediately.
Legal Topics
['damaged Leased Premises' 'water Ingress' 'rent Abatement' 'termination of Lease' 'bank Guarantee' 'retail Shop Jurisdiction']
['retail Leases' 'consumer and Commercial Law'] ['damaged Leased Premises' 'water Ingress' 'rent Abatement' 'termination of Lease' 'bank Guarantee' 'retail Shop Jurisdiction']

Case Brief

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Procedural Posture

Retail Lease Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the leased premises were damaged by water ingress within clause 8.2 of the lease and section 36.1 of the Retail Leases Act 1994.' "Whether the lessors failed to repair the damage within the period specified after the lessee's 6 July 2022 request, entitling the lessee to terminate the lease." 'Whether the premises were a retail shop for the purposes of the Retail Leases Act 1994 despite part of the premises being described as warehouse areas.' 'Whether the lessee was liable to pay rent up to termination and whether the lessors were entitled to convert the bank guarantee.' 'Whether the lessee could recover amounts paid for plumbing inspection, carpet replacement and building a display room.']

Ratio Decidendi

The Tribunal found that the premises were damaged by water ingress through besser block walls, that the lessee's 6 July 2022 letter was a request under clause 8.2.4, and that photographs sent on 25 July 2022 showed the damage had not been repaired within the specified period. The lessee was therefore entitled to give 7 days notice and the lease terminated on 3 August 2022. The permitted use, floor covering sales, corresponded with 'Floor covering shops' in Schedule 1 of the Retail Leases Regulation 2022, so the premises were a retail shop. Because the lessee was not liable for rent from 2 February to 3 August 2022, the lessors had no right to convert the $38,500 bank guarantee or retain...

Court Disposition

Application allowed in part; respondents ordered to pay the applicant $51,333.34 immediately.

Orders

  • ['Jim Tsiakos & John Kolovos must pay BBL International Pty Ltd the sum of $51,333.34 immediately.']