Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177

Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177

Lessors misleadingly or deceptively represented to lessees that they had rights to fit out common property (area beneath timber landings). In reality, this area was common property and required a by-law for use, which lessors failed to disclose. This conduct contravened s 62D of the Retail Leases Act 1994 (NSW), and lessees would not have entered lease had they known. As a result, it was appropriate to order repayment of rent and security bond. Lessees were not in breach regarding reinstatement, nor liable for outstanding rent or repair costs claimed by lessors.

Parties
Applicant: Cara Stella Bianchetto Herbert; Applicant: Lachlan Heathcote Hemphill; Respondent: Yuen Ha Lee; Respondent: Ronan Delaney
Jurisdiction
Australia
Judgment Date
17 October 2023
Procedural Posture
Retail Leases Dispute / Final Orders After Hearing
Outcome
Applicants (lessees) succeeded; respondents (lessors) required to repay $11,325.61; lessors' cross-claim dismissed.
Legal Topics
Retail Leases, Misleading or Deceptive Conduct, Repairs and Lessor's Duties, Common Property Rights, Lease Termination
Leases and Tenancies Consumer Law Retail Leases Misleading or Deceptive Conduct Repairs and Lessor's Duties Common Property Rights Lease Termination

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Cara Stella Bianchetto Herbert

Applicant

Lachlan Heathcote Hemphill

Applicant

Yuen Ha Lee

Respondent

Ronan Delaney

Respondent

Procedural Posture

Retail Leases Dispute / Final Orders After Hearing

Legal Issues

  1. 1 Whether lessors engaged in misleading or deceptive conduct regarding rights to common property under retail shop lease
  2. 2 Whether lessees are entitled to repayment of rent and security bond under Retail Leases Act 1994 (NSW)
  3. 3 Whether lessors are entitled to claim for outstanding rent, agent's fees, and repair costs

Ratio Decidendi

Lessors misleadingly or deceptively represented to lessees that they had rights to fit out common property (area beneath timber landings). In reality, this area was common property and required a by-law for use, which lessors failed to disclose. This conduct contravened s 62D of the Retail Leases Act 1994 (NSW), and lessees would not have entered lease had they known. As a result, it was appropriate to order repayment of rent and security bond. Lessees were not in breach regarding reinstatement, nor liable for outstanding rent or repair costs claimed by lessors.

Court Disposition

Applicants (lessees) succeeded; respondents (lessors) required to repay $11,325.61; lessors' cross-claim dismissed.

Orders

  • The respondents in proceedings COM 23/24375 are to repay $11,325.61 to the applicants immediately.
  • Proceedings COM 23/30593 are dismissed.