Armstrong v Partridge [2011] NSWADT 232

Armstrong v Partridge [2011] NSWADT 232

The Tribunal found no unconscionable conduct and held that s34 did not assist the Applicant because there was no relevant written complaint before 15 November 2010 and the Respondents acted quickly and responsibly thereafter. The plumbing problems were present from the outset and were not damage arising during the lease for s36 purposes. The failure of the air-conditioning from 26 October 2010 was damage that diminished the premises' useability and justified a 40% rent abatement until 19 January 2011, but the Respondents had not failed to repair it within a reasonable time after written notice. The Applicant was therefore not entitled to terminate, and her 29 December 2010 letter...

Jurisdiction
Australia
Judgment Date
05 October 2011
Procedural Posture
Retail Leases Division Proceedings Concerning Abatement of Rent and Damages for Repudiation of Lease / Principal Judgment After Hearing
Outcome
In matter 115010 the Applicant was declared entitled to a 40% rent abatement for 26 October 2010 to 19 January 2011 and the application was otherwise dismissed. In matter 115049 the Respondents were awarded damages of $20,291, release of the $8,750 bond in part satisfaction, and costs.
Legal Topics
['abatement of Rent' 'damaged Premises' 'repudiation of Lease' 'termination for Failure to Pay Rent' 'retail Shop Lease Compensation' 'rental Bond' 'costs']
['retail Leases' 'property Law' 'administrative Tribunal Proceedings'] ['abatement of Rent' 'damaged Premises' 'repudiation of Lease' 'termination for Failure to Pay Rent' 'retail Shop Lease Compensation' 'rental Bond' 'costs']

Case Brief

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Procedural Posture

Retail Leases Division Proceedings Concerning Abatement of Rent and Damages for Repudiation of Lease / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Applicant was entitled to damages or other relief for being locked out of the leased premises and for alleged maintenance failures including failure of the air-conditioning unit.' 'Whether s34 of the Retail Leases Act 1994 applied to the alleged disruption to trading.' 'Whether the premises were damaged within s36 of the Retail Leases Act 1994 and whether the Applicant was entitled to rent abatement or to terminate the lease.' "Whether the Applicant's notice that she would vacate the premises constituted unlawful repudiation of the lease." 'Whether the Respondents were entitled to damages, release of the rental bond and costs.']

Ratio Decidendi

The Tribunal found no unconscionable conduct and held that s34 did not assist the Applicant because there was no relevant written complaint before 15 November 2010 and the Respondents acted quickly and responsibly thereafter. The plumbing problems were present from the outset and were not damage arising during the lease for s36 purposes. The failure of the air-conditioning from 26 October 2010 was damage that diminished the premises' useability and justified a 40% rent abatement until 19 January 2011, but the Respondents had not failed to repair it within a reasonable time after written notice. The Applicant was therefore not entitled to terminate, and her 29 December 2010 letter...

Court Disposition

In matter 115010 the Applicant was declared entitled to a 40% rent abatement for 26 October 2010 to 19 January 2011 and the application was otherwise dismissed. In matter 115049 the Respondents were awarded damages of $20,291, release of the $8,750 bond in part satisfaction, and costs.

Orders

  • ['In proceedings 115010: The Applicant declared entitled to an abatement of rent of 40% in respect of period 26 October 2010 to 19 January 2011, otherwise application is dismissed.' 'In proceedings 115049: The Applicant (in matter 115010) to pay the Respondents damages in the sum of $20,291.' 'The Rental Bond Board...