Fathullah v Varma (RLD) [2013] NSWADTAP 39

Fathullah v Varma (RLD) [2013] NSWADTAP 39

The Tribunal erred in limiting the damages for loss of fixtures and fittings by improperly discounting informal but credible evidence and failing to deduct realised resale value or storage costs. The Tribunal further erred in requiring rigid proof of lost earnings from employment when credible, although uncorroborated, evidence sufficed. The mediation fee should not have been awarded as damages per section 66(2) RL Act. In respect to costs, the Tribunal erred in its approach to representation and costs agreement—costs should be awarded to the appellant at a fair and reasonable hourly rate as the respondents' case was considerably weaker and the relevant fairness criteria were met.

Parties
Appellant: Nihad Fathullah; First Respondent: Arun Deo Varma; Second Respondent: Kamlush Deo Varma; Third Respondent: Aranesh Deo Varma
Jurisdiction
Australia
Judgment Date
08 August 2013
Procedural Posture
Appeal / Appeal Panel (internal) Decision on Appeals Against Principal and Costs Decisions of Tribunal
Outcome
Both appeals allowed. Principal and costs decisions below set aside; new orders substituting increased damages and costs for appellant.
Legal Topics
Retail Leases Act Damages, Breach of Contract, Assessment of Damages, Appeals, Award of Costs
Retail Leasing Administrative Law Retail Leases Act Damages Breach of Contract Assessment of Damages Appeals Award of Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Nihad Fathullah

Appellant

Arun Deo Varma

First Respondent

Kamlush Deo Varma

Second Respondent

Aranesh Deo Varma

Third Respondent

Procedural Posture

Appeal / Appeal Panel (internal) Decision on Appeals Against Principal and Costs Decisions of Tribunal

Legal Issues

  1. 1 Whether damages awarded to appellant were sufficient under the Retail Leases Act 1994 for the lessor's failure to grant possession and subsequent loss to lessee
  2. 2 Whether Tribunal erred in assessment of factual loss (fixtures, wages) and legal entitlement to damages
  3. 3 Whether decision of Tribunal as to mediation fee and costs was correct under relevant legislation

Ratio Decidendi

The Tribunal erred in limiting the damages for loss of fixtures and fittings by improperly discounting informal but credible evidence and failing to deduct realised resale value or storage costs. The Tribunal further erred in requiring rigid proof of lost earnings from employment when credible, although uncorroborated, evidence sufficed. The mediation fee should not have been awarded as damages per section 66(2) RL Act. In respect to costs, the Tribunal erred in its approach to representation and costs agreement—costs should be awarded to the appellant at a fair and reasonable hourly rate as the respondents' case was considerably weaker and the relevant fairness criteria were met.

Court Disposition

Both appeals allowed. Principal and costs decisions below set aside; new orders substituting increased damages and costs for appellant.

Orders

  • The appeal against the Tribunal's decision given on 15 November 2012 is allowed.
  • The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $23,950.39, comprising $20,550 as principal and $3,400.39 as interest.'