Smith v Lambert [2021] NSWCATAP 16

Smith v Lambert [2021] NSWCATAP 16

Time was extended because the delay was very short, no prejudice to the Respondent was shown, and the Appeal Panel considered that an injustice had occurred. The Respondent repudiated the agreement constituted by the 3 and 6 January 2020 correspondence by selling the business himself and retaining access to the premises, so the parties' rights and obligations under the lease applied and the Appellant was entitled to rent and outgoings from 6 to 21 January 2020. The Tribunal also erred in dismissing the painting compensation claim because, despite the prior condition of the paintwork, the Appellant was entitled to compensation reasonably necessary to achieve uniformity of appearance with...

Jurisdiction
Australia
Judgment Date
01 February 2021
Procedural Posture
Appeal Concerning a Retail Lease Dispute / Appeal Panel Decision on Extension of Time and Appeal From the Consumer & Commercial Division Decision Dated 17 September 2020
Outcome
Time for lodgement of the appeal extended; appeal upheld; Respondent ordered to pay the Appellant $3461.60 in addition to the orders made at first instance.
Legal Topics
['agreement to Vary Lease Obligations' 'repudiation' 'rent and Outgoings After Vacating Premises' 'compensation for Painting Awning and Fascia' 'extension of Time to Lodge Appeal' 'question of Law on Appeal']
['retail Leasing' 'contract Law' 'civil Procedure' 'tribunal Appeals'] ['agreement to Vary Lease Obligations' 'repudiation' 'rent and Outgoings After Vacating Premises' 'compensation for Painting Awning and Fascia' 'extension of Time to Lodge Appeal' 'question of Law on Appeal']

Case Brief

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Procedural Posture

Appeal Concerning a Retail Lease Dispute / Appeal Panel Decision on Extension of Time and Appeal From the Consumer & Commercial Division Decision Dated 17 September 2020

Legal Issues

  1. 1 ['Whether time should be extended for lodgement of the appeal filed after the 28 day period.' 'Whether the Tribunal erred in finding an enforceable agreement relieved the Respondent from paying rent and outgoings after 6 January 2020.' 'Whether the Respondent repudiated the agreement constituted by the correspondence dated 3 and 6 January 2020.' "Whether the Tribunal erred in dismissing the Appellant's claim for compensation for painting the underside of the awning and fascia."]

Ratio Decidendi

Time was extended because the delay was very short, no prejudice to the Respondent was shown, and the Appeal Panel considered that an injustice had occurred. The Respondent repudiated the agreement constituted by the 3 and 6 January 2020 correspondence by selling the business himself and retaining access to the premises, so the parties' rights and obligations under the lease applied and the Appellant was entitled to rent and outgoings from 6 to 21 January 2020. The Tribunal also erred in dismissing the painting compensation claim because, despite the prior condition of the paintwork, the Appellant was entitled to compensation reasonably necessary to achieve uniformity of appearance with...

Court Disposition

Time for lodgement of the appeal extended; appeal upheld; Respondent ordered to pay the Appellant $3461.60 in addition to the orders made at first instance.

Orders

  • ['The time for lodgement of the appeal is extended.' 'Appeal upheld.' 'In addition to the orders made at first instance, the Respondent is to pay to the Appellant immediately, the sum of $3461.60']