O'Hehir and anor v Kennedy Plaza Pty Limited [2008] NSWADT 30

O'Hehir and anor v Kennedy Plaza Pty Limited [2008] NSWADT 30

The respondent breached the statutory notice obligations (s 33), the covenant of quiet enjoyment, and s 34 of the Retail Leases Act 1994. Compensation was determined for loss of profits, reinstatement of the display garden, promotional expenses, and stock loss, attributed to respondent's conduct during redevelopment works, after deducting unsupported or speculative claims.

Parties
Applicants: John Gerard O'Hehir and Lynne Karen O'Hehir; Respondent: Kennedy Plaza Pty Limited
Jurisdiction
Australia
Judgment Date
16 January 2008
Procedural Posture
Retail Tenancy Claim and Breach of Lease / Final Decision and Revised Orders
Outcome
Judgment for applicants; revised orders substituted; compensation and interest awarded; no order as to costs by consent.
Legal Topics
Retail Leases, Breach of Lease, Quiet Enjoyment, Compensation for Disturbance
Commercial Law Property Law Retail Leases Breach of Lease Quiet Enjoyment Compensation for Disturbance

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Parties

John Gerard O'Hehir and Lynne Karen O'Hehir

Applicants

Kennedy Plaza Pty Limited

Respondent

Procedural Posture

Retail Tenancy Claim and Breach of Lease / Final Decision and Revised Orders

Legal Issues

  1. 1 Whether the respondent breached the Retail Leases Act 1994 notice provisions
  2. 2 Whether the respondent breached the lease covenants including quiet enjoyment
  3. 3 Entitlement of the applicants to compensation for disturbances and losses

Ratio Decidendi

The respondent breached the statutory notice obligations (s 33), the covenant of quiet enjoyment, and s 34 of the Retail Leases Act 1994. Compensation was determined for loss of profits, reinstatement of the display garden, promotional expenses, and stock loss, attributed to respondent's conduct during redevelopment works, after deducting unsupported or speculative claims.

Court Disposition

Judgment for applicants; revised orders substituted; compensation and interest awarded; no order as to costs by consent.

Orders

  • Kennedy Plaza Pty Limited to pay John Gerard O'Hehir and Lynne Karen O'Hehir $32,585.
  • Order to bear interest at the maximum rate permitted under s 72A of Retail Leases Act 1994.