Zouk v Lyons Road Pty Ltd (No 2) [2010] NSWADT 292

Zouk v Lyons Road Pty Ltd (No 2) [2010] NSWADT 292

Ms Zouk is entitled to recover loss of profits for the 94-week delay, calculated based on actual profits when her shop commenced trading (adjusted for various factors including mitigation and interest), amounting to $135,743, plus only those specific expenses directly linked to the breach (asbestos contamination and shop delay) totalling $5,019.62 (exclusive of GST). Other claimed expenses were not sufficiently proven to arise from the respondent's breach, or were litigation costs and are not recoverable.

Parties
Applicant: Emelie Zouk; Respondent: Lyons Road Pty Limited
Jurisdiction
Australia
Judgment Date
07 December 2010
Procedural Posture
Retail Lease Dispute / Determination of Damages Following Earlier Liability Finding
Outcome
Decision in favour of the applicant for specified loss and damages, with directions for parties to file draft orders and further submissions on costs, matter listed for directions hearing.
Legal Topics
Asbestos Contamination, Delay in Commencement of Lease, Loss of Profits, Recoverable Expenses
Retail Leases Landlord and Tenant Damages Asbestos Contamination Delay in Commencement of Lease Loss of Profits Recoverable Expenses

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Parties

Emelie Zouk

Applicant

Lyons Road Pty Limited

Respondent

Procedural Posture

Retail Lease Dispute / Determination of Damages Following Earlier Liability Finding

Legal Issues

  1. 1 What is the appropriate amount of loss and damage suffered by the applicant due to the 94-week delay in being able to commence trading from leased premises caused by the respondent's breaches of lease obligations?
  2. 2 Which expense items were incurred as a direct result of the respondent's breaches and are recoverable?

Ratio Decidendi

Ms Zouk is entitled to recover loss of profits for the 94-week delay, calculated based on actual profits when her shop commenced trading (adjusted for various factors including mitigation and interest), amounting to $135,743, plus only those specific expenses directly linked to the breach (asbestos contamination and shop delay) totalling $5,019.62 (exclusive of GST). Other claimed expenses were not sufficiently proven to arise from the respondent's breach, or were litigation costs and are not recoverable.

Court Disposition

Decision in favour of the applicant for specified loss and damages, with directions for parties to file draft orders and further submissions on costs, matter listed for directions hearing.

Orders

  • On or before 15 December 2010, the parties file and serve draft short minutes of order in accordance with the Tribunal's findings as to loss and damage as set out in these reasons for decision.
  • The matter is listed for directions on 21 December 2010 at 10am for the purpose of hearing submissions on costs (if any).