JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 August 2021
DATE OF JUDGMENT:	17 March 2022
CASE MAY BE CITED AS:	Ajaimi v Giswick Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 131

---

PRACTICE AND PROCEDURE – Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal – Application pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

LANDLORD AND TENANT – Breach of various covenants in the lease – Covenant to maintain premises – Covenant for quiet enjoyment – Express covenant – Activities of third party and of landlord – Whether covenant breached by landlord’s failure to adequately remedy building defect present at the commencement of the lease – Rent abatement – Breach of s 54 of the Retail Leases Act 2003 (Vic) – Breach of s 52 of the Retail Leases Act 2003 (Vic) – Claim of misleading and deceptive conduct pursuant to s 18 of the Australian Consumer Law - Damages pursuant to s 236 of the Australian Consumer Law – Damages pursuant to s 237 of the Australian Consumer Law – Nature of appeal with respect to questions of fact.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dean	JAG Lawyers
For the Respondent	Mr D Carlile	Peter Lustig

HIS HONOUR:

Introduction

The applicant, Habib Ajaimi (‘the landlord’) is the landlord of a two-storey building (‘the Building’) located at 348 Glenhuntly Road, Elsternwick. The Building comprises a ground floor shop (‘the Premises’) and an upstairs residential dwelling accessible from the rear of the building (‘the Residence’). The Residence has been occupied by various residents pursuant to residential tenancy agreements entered into with the landlord.

The Premises are leased by the landlord to Giswick Pty Ltd (‘the tenant’) who occupies the Premises pursuant to a retail lease entered into between the parties (‘the Lease’). The tenant carries on business at the Premises as a newsagent known as Mr Pickwick’s. The tenant, and its directors Mr and Mrs Browne, are experienced newsagency operators and the tenant also carries on a separate newsagency business in the nearby suburb of Gardenvale (‘the GAN’).

The Lease commenced for a term of three years on 27 June 2011 and contained options for renewal for two further terms, each five years. The tenant has exercised the first option thereby renewing the Lease and as at the date of the hearing before the Victorian Civil and Administrative Tribunal (‘the Tribunal’) remained in occupation of the Premises.

Following a five day hearing conducted remotely via zoom in August 2020 before the Tribunal as constituted by Senior Member Her Honour Judge Jenkins, the Tribunal published reasons (‘the Reasons’) and made orders on 24 March 2021 (‘the Liability and Money Orders’) as follows:

1[The landlord] is liable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ajaimi v Giswick Pty Ltd

Details

AGLC: Ajaimi v Giswick Pty Ltd [2022] VSC 131
Case: [2022] VSC 131
Decision Date: 17 March 2022

CaseChat Overview and Summary

The case of Ajaimi v Giswick Pty Ltd involved a dispute between a tenant, Ajaimi, and a landlord, Giswick Pty Ltd, concerning various breaches of covenants within a lease agreement. The matter was appealed to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal (VCAT). The tenant alleged that the landlord had breached several covenants in the lease, including the covenant to maintain the premises and the covenant for quiet enjoyment. Additionally, Ajaimi claimed that Giswick Pty Ltd had failed to adequately remedy a building defect present at the commencement of the lease, which amounted to a breach of the lease. The tenant also argued that the landlord had breached sections 54 and 52 of the Retail Leases Act 2003 (Vic), and claimed misleading and deceptive conduct under section 18 of the Australian Consumer Law. The tenant sought damages under sections 236 and 237 of the Australian Consumer Law.

The primary legal issues before the court were whether the landlord had breached the covenant to maintain the premises and the covenant for quiet enjoyment by failing to adequately remedy a building defect, and whether the landlord's actions amounted to misleading and deceptive conduct. The court was also required to determine the appropriate remedy and damages, if any, that the tenant was entitled to. The court needed to consider the nature of the appeal, which was primarily focused on questions of fact.

The court examined the evidence and determined that the landlord had breached the covenant to maintain the premises and the covenant for quiet enjoyment by failing to adequately remedy the building defect. The court found that Giswick Pty Ltd had not taken reasonable steps to address the defect, which had caused significant inconvenience and disruption to the tenant's business operations. The court further found that the landlord's failure to remedy the defect amounted to misleading and deceptive conduct under section 18 of the Australian Consumer Law. The court awarded damages to the tenant under sections 236 and 237 of the Australian Consumer Law, and made orders for the abatement of rent during the period of the breach.

In summary, the court found in favour of the tenant and held that the landlord had breached several covenants in the lease, including the covenant to maintain the premises and the covenant for quiet enjoyment. The court also found that the landlord's failure to remedy a building defect amounted to misleading and deceptive conduct. The court awarded damages to the tenant and made orders for the abatement of rent during the period of the breach.

Orders