Blandino & Ors v Giardini & Ors (RLD) [2008] NSWADTAP 55

Blandino & Ors v Giardini & Ors (RLD) [2008] NSWADTAP 55

Lessees failed to prove that lessors unreasonably allocated parking spaces or breached section 34 of the Retail Leases Act 1994 or the lease terms, as lessees knew of and accepted the allocation before entering the lease. The lessors, however, failed to mitigate their loss when seeking a substantially increased rent for a prolonged period after lease termination. Damages for lost rent were therefore limited to three months, reflecting a reasonable turnover period for re-letting at market rent.

Parties
Appellant: Giuseppe Blandino; Appellant: Berenice Blandino; Appellant: Paul Blandino; Respondent: Robert Guy Giardini; Respondent: Danielle Simone Giardini; Respondent: Gabriele Giardini; Respondent: Gemma Giardini
Jurisdiction
Australia
Judgment Date
21 August 2008
Procedural Posture
Appeal / Appeal Panel Decision Following Hearing of Appeal Against Tribunal Decision on Liability and Assessment of Damages
Outcome
Appeal partly allowed; damages award varied
Legal Topics
Retail Shop Leases, Disturbance of Trading, Assessment of Damages, Mitigation of Loss, Termination of Lease
Property Law Commercial Law Retail Shop Leases Disturbance of Trading Assessment of Damages Mitigation of Loss Termination of Lease

Case Brief

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Parties

Giuseppe Blandino

Appellant

Berenice Blandino

Appellant

Paul Blandino

Appellant

Robert Guy Giardini

Respondent

Danielle Simone Giardini

Respondent

Gabriele Giardini

Respondent

Gemma Giardini

Respondent

Procedural Posture

Appeal / Appeal Panel Decision Following Hearing of Appeal Against Tribunal Decision on Liability and Assessment of Damages

Legal Issues

  1. 1 Whether lessees were entitled to terminate the lease due to unreasonable allocation of parking spaces by lessors
  2. 2 Whether lessors took adequate steps to mitigate loss of rent after lessees terminated the lease
  3. 3 Assessment of damages for loss of rent resulting from termination

Ratio Decidendi

Lessees failed to prove that lessors unreasonably allocated parking spaces or breached section 34 of the Retail Leases Act 1994 or the lease terms, as lessees knew of and accepted the allocation before entering the lease. The lessors, however, failed to mitigate their loss when seeking a substantially increased rent for a prolonged period after lease termination. Damages for lost rent were therefore limited to three months, reflecting a reasonable turnover period for re-letting at market rent.

Court Disposition

Appeal partly allowed; damages award varied

Orders

  • Leave is granted for the appeal to extend to a review of the merits.
  • Tribunal's decision of 4 March 2008 is varied by setting aside Order 2 and substituting the following order: 'In proceedings number 075023, order that the Respondents pay to the Applicants the sum of $12,932.87'.