Kiem Dang Investment Pty Ltd v Jewel Food Stores Pty Ltd & Ors [2009] NSWSC 870

Kiem Dang Investment Pty Ltd v Jewel Food Stores Pty Ltd & Ors [2009] NSWSC 870

The defendants were in breach of lease covenants for non-payment of rent, outgoings, and failing to keep the premises open for business. The plaintiff had complied with its repair obligations by August 2007; any further issues with the air conditioning (PAC unit) were the defendants' responsibility under the lease. The plaintiff lawfully terminated the lease after proper notice and was entitled to damages for loss of the lease term. The plaintiff was found liable in damages of $50,000 for breach of repair and quiet enjoyment covenants caused by water penetration between 2000 and 2006. The plaintiff did not fail to mitigate its loss in attempting to relet the premises.

Jurisdiction
Australia
Judgment Date
28 August 2009
Procedural Posture
Principal Judgment / Liability and Quantum
Outcome
The defendants are liable to the plaintiff for all unpaid rent, outgoings and other expenses up to 16 November 2007 and damages thereafter up to 18 March 2009. The plaintiff is liable in damages in the sum of $50,000 for breach of covenants regarding water penetration. Orders stood over for parties to bring agreed...
Legal Topics
['lease Termination' 'breach of Covenant' 'mitigation of Loss' 'damages for Breach of Lease' 'quiet Enjoyment' 'repudiation' 'repair Obligations']
['property Law' 'landlord and Tenant'] ['lease Termination' 'breach of Covenant' 'mitigation of Loss' 'damages for Breach of Lease' 'quiet Enjoyment' 'repudiation' 'repair Obligations']

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Procedural Posture

Principal Judgment / Liability and Quantum

Legal Issues

  1. 1 ['Whether the defendants were in breach of lease covenants regarding payment of rent, outgoings, and trading hours' 'Whether the plaintiff breached its repair and quiet enjoyment obligations under the lease' 'Whether the plaintiff lawfully terminated the lease' 'Whether the plaintiff failed to mitigate its loss' 'Whether and to what extent damages are payable, and by whom']

Ratio Decidendi

The defendants were in breach of lease covenants for non-payment of rent, outgoings, and failing to keep the premises open for business. The plaintiff had complied with its repair obligations by August 2007; any further issues with the air conditioning (PAC unit) were the defendants' responsibility under the lease. The plaintiff lawfully terminated the lease after proper notice and was entitled to damages for loss of the lease term. The plaintiff was found liable in damages of $50,000 for breach of repair and quiet enjoyment covenants caused by water penetration between 2000 and 2006. The plaintiff did not fail to mitigate its loss in attempting to relet the premises.

Court Disposition

The defendants are liable to the plaintiff for all unpaid rent, outgoings and other expenses up to 16 November 2007 and damages thereafter up to 18 March 2009. The plaintiff is liable in damages in the sum of $50,000 for breach of covenants regarding water penetration. Orders stood over for parties to bring agreed...

Orders

  • ['Matter stood over to 4 September 2009 for agreed short minutes of order reflecting the reasons given.' 'Damages to defendants on cross-claim in sum of $50,000 for water penetration.' 'Plaintiff entitled to damages for loss of bargain (quantification subject to further argument), for unpaid rent, outgoings and...