Fathullah v Varma [2012] NSWADT 237

Fathullah v Varma [2012] NSWADT 237

The Applicant executed the lease and was allowed into possession for fit out, but the Respondents did not provide exclusive possession or quiet use and enjoyment; after the Respondents asked him to leave during the rent free period, the mortgagee changed the locks and took possession. The Applicant therefore received no consideration for the rent paid and was entitled to recover the unrecovered $8,250, plus the $760 mediation fee and statutory interest of $646.38. The fixture, fitting and lost wages claims were not proved, and the Respondents' claims were unsupported and rejected.

Jurisdiction
Australia
Judgment Date
15 November 2012
Procedural Posture
Retail Lease Dispute in the Retail Leases Division / Principal Judgment After Hearing
Outcome
Application allowed in part; Respondents ordered to pay the Applicant $9,656.38; no costs order unless further submissions are filed.
Legal Topics
['failure of Consideration' 'compensation' 'retail Lease Security' 'mortgagee Possession' 'costs']
['retail Leases' 'administrative Law' 'contract Law'] ['failure of Consideration' 'compensation' 'retail Lease Security' 'mortgagee Possession' 'costs']

Case Brief

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Procedural Posture

Retail Lease Dispute in the Retail Leases Division / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Applicant was entitled to recover rent payments made for the Premises where he did not obtain exclusive possession or quiet use and enjoyment and the Respondents' mortgagee took possession." 'Whether the Applicant proved loss for fixtures and fittings, lost wages, mediation costs and interest.' 'Whether the Respondents were entitled to rent, damages, compensation or restraining orders against the Applicant.']

Ratio Decidendi

The Applicant executed the lease and was allowed into possession for fit out, but the Respondents did not provide exclusive possession or quiet use and enjoyment; after the Respondents asked him to leave during the rent free period, the mortgagee changed the locks and took possession. The Applicant therefore received no consideration for the rent paid and was entitled to recover the unrecovered $8,250, plus the $760 mediation fee and statutory interest of $646.38. The fixture, fitting and lost wages claims were not proved, and the Respondents' claims were unsupported and rejected.

Court Disposition

Application allowed in part; Respondents ordered to pay the Applicant $9,656.38; no costs order unless further submissions are filed.

Orders

  • ['The Respondents are to pay to the Applicant the sum of $9,656.38.' 'There will be no order made in relation to costs unless the Applicant files and serve written submissions as to costs within 14 days of the date of these orders. If the Applicant files and serves written submissions as to costs within this period,...