D & D Ventures Pty Ltd v Evans & Anor [2004] NSWADT 130 [2004] NSWADT 130

D & D Ventures Pty Ltd v Evans & Anor [2004] NSWADT 130 [2004] NSWADT 130

The Lessee failed to establish that the Lessors breached obligations in respect of the main outdoor area's fibreglass roofing, as no implied or express warranty for weatherproofing arose and defects were visible upon inspection; only failure to rectify air-conditioning support faults in gutters constituted breach, but no resultant proven damage to Lessee. The Lessee did not establish misrepresentation or unconscionable conduct. The Lessors' cross-claim for unpaid rent, agreed restoration sums, and mitigation costs succeeded, subject to setoff for security held and interest.

Parties
Applicant: D & D Ventures Pty Ltd; Respondent: Barry George Evans; Respondent: Cherolyn Anne Evans
Jurisdiction
Australia
Judgment Date
06 July 2004
Procedural Posture
Claim for Payment of Money Unconscionability / Principal Matter/decision
Outcome
Application dismissed; Cross-claim allowed
Legal Topics
Breach of Lease Covenants, Misrepresentation, Unconscionable Conduct, Rent and Outgoings, Repudiation, Mitigation of Damages
Retail Leases Contracts Breach of Lease Covenants Misrepresentation Unconscionable Conduct Rent and Outgoings Repudiation Mitigation of Damages

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Parties

D & D Ventures Pty Ltd

Applicant

Barry George Evans

Respondent

Cherolyn Anne Evans

Respondent

Procedural Posture

Claim for Payment of Money Unconscionability / Principal Matter/decision

Legal Issues

  1. 1 Were the Lessors in breach of the lease obligations regarding maintenance and repair of the premises?
  2. 2 Did the Lessors make misrepresentations or engage in unconscionable conduct?
  3. 3 Was the Lessee entitled to damages for breach, misrepresentation, or unconscionable conduct?

Ratio Decidendi

The Lessee failed to establish that the Lessors breached obligations in respect of the main outdoor area's fibreglass roofing, as no implied or express warranty for weatherproofing arose and defects were visible upon inspection; only failure to rectify air-conditioning support faults in gutters constituted breach, but no resultant proven damage to Lessee. The Lessee did not establish misrepresentation or unconscionable conduct. The Lessors' cross-claim for unpaid rent, agreed restoration sums, and mitigation costs succeeded, subject to setoff for security held and interest.

Court Disposition

Application dismissed; Cross-claim allowed

Orders

  • The Application is dismissed.
  • The Cross Claim is allowed.