Smooth Flight Pty Ltd v Mo & Leung [2015] NSWCATCD 71

Smooth Flight Pty Ltd v Mo & Leung [2015] NSWCATCD 71

The respondents were obliged under clause 7.1 of the lease to maintain the structure of the building, including the roof and awning, and to fix structural defects. Condition 5 did not displace that obligation. The roof, flashing, drainage, parapet wall and awning works were structural and/or due to fair wear and tear, and the respondents' refusal to perform them breached the lease. The applicant acted reasonably in carrying out necessary works and complying with Council emergency orders, so the respondents were liable to reimburse the recoverable costs and indemnify the applicant for compliance with those orders.

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Retail Lease Dispute in the Consumer and Commercial Division Concerning Liability for Repairs to Leased Premises / Principal Judgment After Hearing
Outcome
Application substantially allowed; declaration and payment order made, with costs submissions reserved.
Legal Topics
['obligation to Repair' 'structural Work' 'fair Wear and Tear' 'emergency Orders' 'damages for Breach of Lease']
['lessor and Lessee' 'retail Leases' 'contract Law'] ['obligation to Repair' 'structural Work' 'fair Wear and Tear' 'emergency Orders' 'damages for Breach of Lease']

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Procedural Posture

Retail Lease Dispute in the Consumer and Commercial Division Concerning Liability for Repairs to Leased Premises / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondents or the applicant were liable under the lease for the cost of roof, awning and related structural repair works.' 'Whether condition 5 of the lease imposed liability on the lessee for structural work notwithstanding clause 7.1.' 'Whether the applicant was entitled to recover costs incurred in carrying out works after the respondents refused to do them.' 'Whether the respondents were liable to indemnify the applicant for the cost of complying with Hurstville Council emergency orders.']

Ratio Decidendi

The respondents were obliged under clause 7.1 of the lease to maintain the structure of the building, including the roof and awning, and to fix structural defects. Condition 5 did not displace that obligation. The roof, flashing, drainage, parapet wall and awning works were structural and/or due to fair wear and tear, and the respondents' refusal to perform them breached the lease. The applicant acted reasonably in carrying out necessary works and complying with Council emergency orders, so the respondents were liable to reimburse the recoverable costs and indemnify the applicant for compliance with those orders.

Court Disposition

Application substantially allowed; declaration and payment order made, with costs submissions reserved.

Orders

  • ['Declare that the respondents are liable to indemnify the applicant in respect of the Cost of complying with the Emergency Orders issued by Hurstville Council on 19 September 2013 and 14 May 2014.' 'Order that the respondents pay the sum of $32,675.97 to the Applicant forthwith.' 'Leave to the Applicant to file and...