Mattana Coiffure Pty Limited v Sotiropoulos (No2) [2004] NSWADT 80

Mattana Coiffure Pty Limited v Sotiropoulos (No2) [2004] NSWADT 80

The respondent was required to pursue development approval and complete rectification works because the leased premises still required remediation and completion of approved toilet, laundry and Treatment Room 2 works. The applicant was entitled to compensation and interest for loss of income, lost trading days, loss of use and joinery replacement. The respondent's tardiness in remedying the temporary facilities and failure to accept the applicant's 30 May 2003 offer constituted special circumstances justifying a party/party costs order in the applicant's favour. The CPI rent increase issue was not determined because it had not been pleaded and no evidence had been heard.

Jurisdiction
Australia
Judgment Date
23 April 2004
Procedural Posture
Retail Leases Dispute; Claim for Payment of Money, Rectification of the Lease and Costs / Orders and Costs
Outcome
Orders made for building works, compensation, interest, costs, liberty to apply and a declaration of lease rights.
Legal Topics
['building Works and Remediation of Leased Premises' 'development Approval' 'temporary Facilities' 'loss of Income and Loss of Use' 'interest on Compensation' 'special Circumstances for Costs' 'declaration of Lease Rights']
['retail Leases' 'leases' 'civil Procedure' 'costs' 'compensation'] ['building Works and Remediation of Leased Premises' 'development Approval' 'temporary Facilities' 'loss of Income and Loss of Use' 'interest on Compensation' 'special Circumstances for Costs' 'declaration of Lease Rights']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Retail Leases Dispute; Claim for Payment of Money, Rectification of the Lease and Costs / Orders and Costs

Legal Issues

  1. 1 ['Whether the respondent should be ordered to obtain development approval and complete building works and rectification of Treatment Room 2.' 'Whether the applicant should receive compensation for loss of income, lost trading days, loss of use of Treatment Room 2, joinery replacement and interest.' 'Whether either party established special circumstances justifying costs orders.' 'Whether CPI rent increases could be raised by way of set-off despite not having been pleaded or supported by evidence.' 'What rights to occupy, park and access were comprised in the lease.']

Ratio Decidendi

The respondent was required to pursue development approval and complete rectification works because the leased premises still required remediation and completion of approved toilet, laundry and Treatment Room 2 works. The applicant was entitled to compensation and interest for loss of income, lost trading days, loss of use and joinery replacement. The respondent's tardiness in remedying the temporary facilities and failure to accept the applicant's 30 May 2003 offer constituted special circumstances justifying a party/party costs order in the applicant's favour. The CPI rent increase issue was not determined because it had not been pleaded and no evidence had been heard.

Court Disposition

Orders made for building works, compensation, interest, costs, liberty to apply and a declaration of lease rights.

Orders

  • ['The Respondent use all reasonable endeavours to obtain approval for Development Application 8.2003.408.1, in its current form or as amended only so far as is necessary to satisfy the requirements of Mosman Council, from Mosman Council at the earliest possible time.' "The Respondent, within 8 weeks of obtaining...