Peter A Simon Real Estate Pty. Ltd. v. Ghabash & Ors.; Chung & Anor. v. Ghabash [2004] NSWCA 467

Peter A Simon Real Estate Pty. Ltd. v. Ghabash & Ors.; Chung & Anor. v. Ghabash [2004] NSWCA 467

Clause 15 of the lease excluded liability for fire damage to the tenant's property caused by the landlord, including in negligence; no liability established against the agent as causation and duty were not proved; goodwill damages assessment by the primary judge was excessive and reduced to $50,000.00.

Parties
Appellant: Peter A Simon Real Estate Pty. Ltd.; Respondent: Michael Ghabash; Respondent: Michael Chung; Respondent: Diana Chung
Jurisdiction
Australia
Judgment Date
17 December 2004
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeals allowed; damages award varied and original judgments set aside.
Legal Topics
Commercial Lease, Exemption Clauses, Duty of Care, Negligence by Agent, Assessment of Damages
Landlord and Tenant Principal and Agent Damages Commercial Lease Exemption Clauses Duty of Care Negligence by Agent Assessment of Damages

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Parties

Peter A Simon Real Estate Pty. Ltd.

Appellant

Michael Ghabash

Respondent

Michael Chung

Respondent

Diana Chung

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether lessor exempt from liability for fire damage under lease clause 15
  2. 2 Whether managing agent liable for negligence in failing to attend to repairs or pass on complaints
  3. 3 Proper approach to assessment of damages where records destroyed or unreliable

Ratio Decidendi

Clause 15 of the lease excluded liability for fire damage to the tenant's property caused by the landlord, including in negligence; no liability established against the agent as causation and duty were not proved; goodwill damages assessment by the primary judge was excessive and reduced to $50,000.00.

Court Disposition

Appeals allowed; damages award varied and original judgments set aside.

Orders

  • Appeal allowed in favour of PAS; judgment against PAS set aside and in lieu thereof judgment for PAS.
  • Mr. Ghabash to pay PAS's costs of the appeal and to have a Suitors Fund certificate if otherwise entitled.