Bozcom Pty Limited v Kevin Geoffrey Lynch and Leanne Gai Lynch

[2015] NSWCATCD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bozcom Pty Limited v Kevin Geoffrey Lynch and Leanne Gai Lynch [2015] NSWCATCD 31
Hearing dates:	11 December 2014
Decision date:	03 March 2015
Jurisdiction:	Consumer and Commercial Division
Before:	D Patten, Principal Member
Decision:	Order that Respondents Kevin Geoffrey Lynch and Leanne Gai Lynch to pay to the applicant forthwith the sum of $2,000.00. Subject to paragraph 37 no order as to costs.
Catchwords:	Retail Lease – ambit of covenant to re-instate
Legislation Cited:	Retail Leases Act
Cases Cited:	Joyner v Weeks (1891) 2QB 31 Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567
Category:	Principal judgment
Parties:	Bozcom Pty Limited (applicant) Kevin Geoffrey Lynch and Leanne Gai Lynch (respondents)
Representation:	Counsel: Mr J Keogh (applicant) Mr G Carolan (respondents) Solicitors: McPhee Kelshaw solicitors for the applicant Benetatos White, solicitors for the respondents
File Number(s):	COM 14/23621
Publication restriction:	Unrestricted

reasons for decision

1. This case concerns a lease by the Applicant Bozcom Pty Ltd (Bozcom) to Kevin Lynch and Leanne Lynch (Mr & Mrs Lynch) of premises being the ground floor of 15 -17 Plantation Street, Wentworth Falls (hereafter the premises). The lease was for a term of 10 years from 1 September 2003 expiring on 31 August 2013. It was registered as AA943036Q. The permitted use under the lease was “Newsagency” a business prescribed for the purposes of the definition of “retail shop” in s 3 of the Retail Leases Act (the Act)

It was common ground that the lease constituted a retail shop lease for the purposes of the Act.

2. The application filed in this Tribunal on 2 May 2014 sought damages on a number of bases totalling $114,002.69. The Claim was substantially modified in an exchange of letters between Solicitors shortly before the hearing on 11 December 2014. Indeed by letter dated 5 December 2014 Bozcom’s Solicitors McPhee Kelshaw abandoned entirely the largest component of the original claim namely that for alleged arrears of rent totalling $83,768.15.

3. In that letter the current claim was quantified:

“Our client’s claim is now for $39,596.31, which amount is calculated as follows:

Loss of rental for period 4 March 2014 to 3 June 2014 (paragraph9.5 of Affidavit sworn by Matthew Gale on 25 September 2014) $18,356.85

Interest on unpaid rental for period 4 March 2014 to 3 June 2014 (after the expiry of fourteen (14) days from 4 March to 3 June 2014) (paragraph 9.6 of Affidavit sworn by Matthew Gale on 25 September 2014) $423.69

Additional one (1) week’s rental for period from 4 June 2014 to 10 June 2014, as reinstatement of the premises took an extra week beyond 4 March 2014, which was initially estimated by our client (page 3 of Annexure ‘AL’ to Affidavit sworn by Francesco Cosimo Bressi on 26 September 2014) - $5,962.54 per month $5,962.54

Amended Lateral Developments Invoice dated 7 March 2014 (paragraph 7 of Affidavit sworn by Francesco Cosimo Bressi on 26 September 2014) (Annexure ‘A L’) $15,972.50

Chris Oakes – Bricklayer (Annexure ‘AN’ to Affidavit sworn by Francesco Cosimo Bressi on 26 September 2014) ? amount

Amber Penrith – purchase of bricks (Annexure ‘AO’ to Affidavit sworn by Francesco Cosimo Bressi on 26 September 2014) $114.30

O’Gradey Glass – windows for premises, as per quote dated 7 March 2014, a copy of which is attached to our client’s Application, dated 2 May 2014 $3,003.00

$39,596.31”

4. The claim as amended without objection from Mr & Mrs Lynch formed the basis of the hearing before me. In general terms it is a claim for the cost of reinstating the premises following the lessees departure and a claim for rent lost while the reinstatement was carried out.

5. Before turning to the relevant provisions of the registered lease (hereafter the lease) it is I think appropriate to record that the relationship between the parties did not commence with the lease. According to Mr Lynch’s Affidavit of 26 July 2014 he and his wife purchased the business Wentworth Falls Newsagency being conducted in the premises in 1993. As the landlord would not consent to a transfer of the existing lease they entered into a 3 year lease with a 3 year option of renewal. In 1999 they entered into a 5 year lease with an option of renewal for 5 years but following a dispute about the exercise of the option the lease central to these proceedings was entered into. The 10 year term of the lease did not contain an option for renewal but in the event Mr and Mrs Lynch held over in possession until March 2014. As a result they were in occupation of the premises in total for more than twenty years.

6. The primary obligations under the lease in relation to keeping the premises in repair are contained in clause 7:

“CLAUSE 7 CONDITION AND REPAIRS

Who is to repair the property?

7.1 The landlord must –7.1.1 maintain in a state of good condition and serviceable repair the roof, the ceiling, the external walls and doors and associated door jambs, and the floors of the property and must fix structural defects;

7.1.2 maintain the property in a structurally sound condition; and

7.1.3 maintain essential services.

7.2 The tenant must otherwise maintain the property in its condition at the commencement date and promptly do repairs needed to keep it in that condition but the tenant does not have to –

7.2.1 alter or improve the property; or

7.2.2 fix structural defects; or

7.2.3 repair fair wear and tear.

7.3 The tenant must also –

7.3.1 reimburse the landlord for the cost of fixing structural damage caused by the tenant, apart from fair wear and tear;

7.3.2 maintain and decorate the shop front if the property has one; and

7.3.3 decorate the inside of the property in the last 3 months of the lease period (however it ends) – ‘decorate’ here means restoring the surfaces of the property in a style and to a standard of finish originally used e.g. by repainting.

7. An earlier special condition in item 19 of the Schedule bore upon the subject of repair obligations but in my view that special condition has no application to the circumstances of this case.

8. However two other provisions should be mentioned viz clauses 12.3 and 12.4

12.3 When this lease ends, unless the tenant becomes a tenant of the property under a new lease the tenant must –

12.3.1 return the property to the landlord in the state and condition that this lease requires the tenant to keep it in; and

12.3.2 have removed any goods and anything that the tenant fixed to the property and have made good any damage caused by the removal.

Anything not removed becomes the property of the landlord who can keep it or remove and dispose of it and charge to the tenant the cost of removal making good and disposal.

12.4 If the landlord allows the tenant to continue to occupy the property after the end of the lease period (other than under a new lease) then -

12.4.1 the tenant becomes a monthly tenant and must go on paying the same rent and other money in the same way that the tenant had to do under this lease just before the lease period ended (apportioned and payable monthly);

12.4.2 the monthly tenancy will be on the same terms as this lease, except for –

• clause 4;

• clauses 5.4 to 5.21 inclusive; and

• clause 6.2 unless consent has previously been given;

12.4.3 either the landlord or the tenant can end the monthly tenancy by giving, at any time, one month’s notice to the other expiring on any date; and

12.4.4 anything that the tenant must do by the end of this lease must be done by the end of the monthly tenancy.

9. In support of his case Mr Keogh who appeared for Bozcam read the affidavits of Francesco Bressi sworn 26 September 2014 and 1 December 2014, Matthew Gale 25 September 2014, Paul McPhee 26 September 2014 and William Taylor 27 November 2014. Only Mr Bressi and Mr Gale were required for cross examination.

10. Mr Bressi deposed that he is one of the two directors of Bozcam which constructed the premises in 1992 and he is also a licensed builder. He said that after Mr & Mrs Lynch had been in occupation for somewhere between 5 and 8 years that is between 1997 and 2000 they established a post office within the newsagency which resulted in a significant alteration or refiguration of the fixtures and fittings which had been in place when they first acquired the newsagency and the installation of post office boxes instead of windows in the front wall of the premises.

11. In his earlier affidavit he recounted his observations and conversations with Mr Lynch on 26 and 27 February 2014 as follows:

3. At the request of one of the Respondents, Kevin Lynch, I inspected the premises at about 11:00am on 26 February 2014. I observed that there were openings on both the right hand and left hand side of the front entrance to the premises, where Australia Post Office boxes had formerly been situated. I also observed windows, with western red cedar frames, as well as pine finger joint architraves and reveals, leaning against one of the walls. They had not at that time been installed. I said to Kevin Lynch

“Why are you replacing the front windows with timber and not with the aluminium as per the original windows?”

(The Respondents had removed the original brown aluminium windows, and installed the Australia Post Office boxes, in their place. The Post Office boxes were hired by various members of the public). Mr Lynch said:

“I was unable to match them.”

I said:

“Brown aluminium can easily be matched.”

As a concession, I said:

“Well, I will accept the western red cedar timber windows as long as the reveals and architraves are also of western red cedar, and not of finger joint pine.”

Finger joint pine does not weather well, and is an inferior timber to western red cedar. Mr Lynch agreed to use western red cedar. At about 2.00pm on the same day, Mr Lynch came to my office, which is in the vicinity of the premises, and asked me to inspect the window sills at the premises, as he was having trouble matching them with the colour of the brickwork. I discussed with him what needed to be done. I said words to the effect:

“They should be bullnosed pavers, to match those used on both the verandah, and the steps next to the windows.”

He agreed.

4. On 27 February 2014, I again inspected the premises at about midday. I observed that, in breach of his agreement with me, Mr Lynch, had used ordinary bricks for the window sills, instead of bull-nosed pavers, and had also installed the finger joint pine architraves and reveals, around the external windows, rather than western red cedar architraves and reveals. I said to Mr Lynch:

“Why haven’t you used the materials we discussed yesterday?”

He said:

“I could not find the bull-nosed pavers and I didn’t want to pay extra for western red cedar to finish the windows.”

He then became irate and raised his voice saying:

“Fuck off.”

I did not have any difficulty sourcing bull-nosed pavers, which I subsequently had installed.

12. Apart from his grievances as to the use of ordinary bricks instead of bull nosed pavers and the use of finger joint pine architraves and reveals Mr Bressi’s earlier affidavit makes a number of complaints about the condition of the premises as vacated by Mr & Mrs Lynch on 3 March 2014. He also complained that the new front windows were not of equal height. In relation to the state of the premises the complaints were that Mr & Mrs Lynch had not removed their fixtures and fittings namely carpeting, panelling some brick columns and a cabinet. He further complained that all the fluorescent light tubes in the premises had been removed, that blue tack and glue marks on an exterior wall had not been cleaned that there were plug marks on the walls that loose electrical cabling was hanging down and that the internal toilet was dirty and had not been repainted. He also complained about the condition of an external toilet which was not part of the lease but which Mr & Mrs Lynch had used for storage without the express permission of Bozcom although it was aware of the use being made.

13. In the result Bozcom apart from cleaning out the premises redid the structural work which Mr & Mrs Lynch had carried out when they replaced the post office boxes with windows. Incidentally when it did so it says that it identified a structural defect which if left unattended may have caused a wall to collapse. Bozcom seeks reimbursement from Mr & Mrs Lynch for all the work it carried out and damages for loss of rent while this was done.

14. The last paragraph of Mr Bressi’s affidavit of 26 September 2014, seemingly inadvertently, highlights what I regard as a significant difficulty in Bozcom’s case:-

16. When the Respondents took possession of the premises, they had been fitted out as an established Newsagency. The Newsagency had been commenced by a Mr Bill Taylor. That Newsagency was purchased by the Respondents and, to the best of my recollection, Mr Lynch’s father. The fixtures and fittings in the premises were acquired by the Respondents (and possibly also Mr Lynch’s father) when they purchased the business from Taylor. When the premises had been originally leased to Taylor, the walls were of face brick, and the concrete floor did not have any floor coverings on it. The Respondents (and possibly also Mr Lynch’s father), purchased the Post Office business some two or three years after acquiring the Newsagency, and began conducting both newsagency and the Post Office from the premises. It was at this time that they removed the windows on the right hand and left hand side of the entrance, and replaced those windows with Australia Post Post boxes.

15. The difficulty I perceive and to which I will need to return is that many of the alleged obligations of Mr & Mrs Lynch relate to the condition of the Premises as at the commencement of the lease viz 1 September 2003 not when they first occupied the premises some ten years earlier. There is no evidence as to the state of the premises at the commencement of the lease although it seems that by then the post office boxes had been installed for some years. If Bozcom had intended the lease to impose obligations on the lessees related to the state of the premises in 1993 it should have so provided.

16. Mr Gale a Real Estate Agent deposed as to his observations of the state of the premises after Mr & Mrs Lynch vacated them. He took a number of photographs which are in evidence but as it seems to me they do not demonstrate that the premises were left in an unclear state or that there was any defect other than that caused by fair wear and tear.

17. Mr Taylor was one of the owners of the newsagency when it was sold to Mr & Mrs Lynch in 1993. As to the fit out of the premises be deposed.

4. We had the premises fitted-out by shopfitters. I believe the fixtures were attached in some way whether by gluing or screwing but cannot recall which. The Applicant, from memory, observed the shop fittings being installed. Most of the fixtures and fittings were on the far wall, opposite the entrance, but there were fixtures and fittings elsewhere in the premises.

5. The Applicant installed all of the electrical and telephone wiring.

6. As at 1993, there was no necessity to install computer cables, as the newsagency business did not, at that time, use computers. I had not installed computer cables as at the date of sale of the business to Kevin Lynch, his wife and his parents.

7. The carpet, which I and my partners arranged to be layed on the floor of the premises, was green. I recall that, as the colours in the newsagency were heritage green and beige.

18. Mr McPhee of McPhee Kelshaw the Solicitor for Bozcom identified correspondence and emails between the parties and their representatives. These relevantly commenced with a letter from Mr and Mrs Lynch to Bozcom’s Agent on 20 June 2013 stating “we will be taking up negotiations for a new lease”. Subsequently however it seems that those negotiations broke down and on 7 November 2013 their solicitors notified Bozcom’s Solicitors “our clients decline your clients offer to a further lease”.

19. On 12 November 2013 McPhee Kelshaw notified Mr & Mrs Lynch that their monthly tenancy would end on 16 December 2013. Further correspondence ensued between the solicitors and negotiations for a fresh lease were for a time renewed. Ultimately the date of vacation was extended to 28 February 2014.

20. On 27 February Mr McPhee in an email to Benatos White Solicitors for Mr & Mrs Lynch raised the subject of the windows which replaced the post office boxes:

“We note that your clients have still not paid the rental, which was due on 1 February 2014.

Further to the matters raised in our email of 25 February 2014, Mr Bressi, the principal of our client company, advises that he observed, when visiting the premises on 26 February 2014, that reinstatement of the two windows, one on either side of the front door, has not been effected to result in them being in the same condition, subject to wear and tear, as they were in when your clients first took occupation of the premises.

The original windows were constructed from aluminium. Your clients have installed cedar frames. They are acceptable to our client. However, the timber around the windows is finger joint pine. That timber is of inferior quality to the cedar and does not weather as efficiently as the cedar.

We have been instructed to request that the finger joint pine be replaced by cedar forthwith.”

21. On 5 March 2014 after Mr & Mrs Lynch had vacated the premises McPhee Kelshaw articulated their clients’ claim as follows:

“Our clients instructs:

1. Your clients laid carpet around (and not underneath) various benches etc. in the premises. The benches have been removed, leaving a patch-worked carpet, with bare floor where the benches etc., had been formerly situated. The whole of the carpet needs to be removed by your clients. There were no floor coverings in the premises, when your clients took possession.

2. The walls are of face brick. Your clients have made a large number of holes in the walls. Plugs have been inserted in some of those holes. The damage to the walls, caused by the holes and plugs, cannot readily be rectified. The only alternative, which our client can see, is to remove the plugs and cement-render the entirety of the internal walls.

3. There is a brick column, inside the premises, but attached to the external wall. Your clients have not removed panelling on that brick column.

4. Your clients have not re-painted the walls and ceilings.

5. Some shelving and a cabinet has been left in the premises. Those items need to be removed.

6. There are various wires hanging from the walls. Our client does not know whether these are electricity, telephone, or other wires. Our client is concerned that the exposed electrical wires pose a danger to anyone entering the premises. Your clients must reinstate the premises in this regard.

7. Your clients’ sign writing on the fascia must be removed.

8. The windows, to which we refer in our email to you of 27 February 2014, were originally of aluminium. Your clients have replaced them with cedar windows. Our client was previously prepared to accept the cedar frames but has now decided that that is not appropriate, particularly as your clients have not responded to our client’s request that the timber around the windows, which is finger joint pine, (which is of poor quality and not weather resistant), be replaced. Our client now therefore, notwithstanding the contents of our email of 27 February 2014, will not accept the cedar frames and requires them to be replaced with aluminium frames.

9. The floor files leading to the storeroom to the toilet are broken. The damage has not been caused by wear and tear. Those floor tiles must be replaced.

The state, in which your clients have left the premises, results in it being unlettable. Therefore, our client does not regard your client as having vacated the premises. Once your clients have attended to their obligations under the Lease, by reinstating the premises, and attending to the above matters, then your clients’ liability for rental will end. In the meantime, your clients continue to be liable.”

22. To that letter Benatos White replied

“1. We note the premises were carpeted when our clients took occupation in 1993.

2. The holes you refer to relate to the shop fittings affixed to the walls (which fittings and, presumably the holes) were in situ when our clients took occupation in 1993. Please advise your client’s wishes in this regard.

3. Our clients are happy to remove the panelling if required. They believe that the panelling enhances the premises and left it there as a consequence.

4. Noted – however the painted surfaces are in a similar condition to when our clients took occupation in 1993.

5. Our clients are happy to remove the shelving if required. They believe that the shelving enhances the utility of the storeroom and left them there as a consequence. Please advise your client’s wishes in this regard.

6. The wires are computer cabling and wiring for the telephone and alarm system. Again, our clients believe there is some utility in leaving the same for any subsequent tenants. We are instructed to confirm there are no ‘live’ electrical wires to concern your client.

7. We presume this will be over painted by the details of any new tenant.

8. We are instructed that the reinstated windows are of the same specifications and standard of the windows in the other shopping centre and that, accordingly, our clients have complied with their obligations under the terms of the lease.

9. You are correct in your assertion that the damage to the floor tiles was not caused by fair wear and tear. It was, in fact occasioned by settlement of the slab and was reported to Mr Tom Hickey of your client’s managing agent some 6 years ago. Nothing was done.

We are instructed that our client’s have left the property clean and tidy with the carpets vacuumed and the floors washed. We deny the premises are ‘unlettable’ as you assert. We are further instructed that our client has left the following for the benefit of the lessor/future tenants – 2 x reverse cycle air conditioners, 1 x alarm system and 2 x security shutters.”

23. Further correspondence polemical in nature ensued between the solicitors but virtually nothing was resolved leading to the institution of these proceedings.

24. I now turn to the evidence given in the case for Mr & Mrs Lynch.

25. In his affidavit sworn 16 November 2014 Mr Lynch attributed most of the alleged damage to the premises in the form of holes drilled or made in the walls, to the previous lessee. He said that the exposed wiring had also been installed by the previous lessee and had been capped. He denied that the premises were left in an unclean state or that the premises were not left by the lessees clean and in good repair to the extent of their contractual obligations – “During the 21 years we occupied the premises we never received any request or demand in relation to the cleanliness or maintenance of the premises either from the lessor or its managing agent.”

26. In relation to his obligation to repaint the premises Mr Lynch said that on 3 April 2014 he spent nearly 5 hours preparing the painted walls for repainting including filling holes and in decorating and washing down walls to prepare for painting. Although he left his equipment overnight in the premises he was prevented by direction of the lessor’s agent from continuing to work the next day.

27. As to the state of the premises when the lessees vacated them Mrs Linda Hennnessy who was not required for cross examination deposed in an affidavit sworn 6 November 2014:

On Friday 28 February 2014 I, together with my husband Patrick Hennessy, assisted Kevin Geoffrey Lynch and his daughter Alexis Lynch in removing all the fixtures and fittings from their newsagency business at 24 Station Street, Wentworth Falls.

After we had completed the work I say the premises were left empty, clean and in good repair.

The premises were fully vacuumed, the storeroom under the stairs was swept clean and all rubbish was removed.

We completed our work at 4.45pm and closed and locked the door to the shop. We then took a load of goods to the Lynch’s new premises on the Great Highway and then headed home..

28. Mr Jurgen Teernstra who was also not required for cross examination deposed in an affidavit sworn 6 November 2014 that he is a licensed builder with 32 years’ experience. It was he who replaced the post office boxes with windows. As to this he said:

3. I was instructed by Kevin Lynch to install a window to replace where the old post office boxes were situated in the outside wall of the premises in 24 Station Street, Wentworth Falls.

4. I observed that the existing windows in the other shops in the arcade were all timber windows.

5. I arranged the installation of 2 Western Red cedar fixed glass windows as treated pine windows were unavailable. The glass in the windows met Australian Standard AS 1288 and AS 2047.

6. The windows were installed with (LOSP) primed treated pine surrounds and architraves. These were fitted as treated pine is more durable and hard wearing. As the windows and surrounds were being painted the difference would not be seen. Treated pine is specifically for external use.

29. In his submissions Mr Keogh referred to a number of authorities but as it seems to me the principles are not in doubt. In Joyner v Weeks (1891) 2QB 31 Lord Asher stated the principle:

That rule is that, when there is a lease with a covenant to leave the premises in repair at the end of the term, and such covenant is broken, the lessee must pay what the lessor proves to be a reasonable and proper amount for putting the premises into the state of repair in which they ought to have been left.

30. As to the situation where performance of the covenant to repair results in an improvement to the premises Mr Keogh referred to the observations of Latham CJ in Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567 at 579 (omitting references):

It is now well established that the repair of a structure may involve renewal or rebuilding of part of it, and that all repairs involve renewal to some extent (Lurcott v Wakely & Wheeler (1) ). There is a difference between repairing a house and building a new house in place of an old house. It is a question of degree whether rebuilding part of a house does or does not fall within the category of repairing a house. A covenant to repair does not involve the covenantee in an obligation to make improvements, but if he cannot perform his covenant to repair without making improvements, then the expense of making the improvements falls upon him. This is the case whether the necessity arises from physical causes, or from legal causes. If, owing to the requirements of the law, repairs cannot be made without also making improvements, then he must perform his covenant to repair in the manner which the law requires

31. In the same case at p 585 Starke J said:

The state of repair required by a covenant to yield and deliver up premises well and substantially repaired depends primarily upon the words used. It involves, in the present case, an obligation to yield and deliver up the premises in such a state of repair as that in which they would be found if managed by a reasonably minded owner having regard to their age, their character, their ordinary use and the requirements of the tenants likely to take them at the time of the demise or subletting

32. Mr Carolan counsel for the respondents made reference to what he described as the “modest” make good provision in the lease. He submitted that I would accept the evidence of Mrs Hennessy as to the cleaning of the premises after the lessees vacated them and the evidence of Mr Teernstra as to the construction of windows where the post office boxes had been removed.

33. In my opinion the difficulty faced by the applicant in respect of much of its case is as I have already mentioned the absence of evidence as to the state of the premises when the lease commenced in September 2003. Indeed such evidence as there is establishes that by then the post office boxes were in place, most if not all of the holes in the walls had been created and there were exposed electricity cables.

34. Although the respondents on the above basis had no contractual obligation to remove the boxes it was presumably in their own interests to do so and having done so they had an obligation to make good. It seems to me on the evidence of Mr Teernstra and the photographic evidence that they did so to a reasonable standard. It is not I think to the point that after the event Mr Bressi decided that he preferred the work to be done differently. He was perfectly entitled to make that decision but in my view at his own expense. That the applicant decided to replace the windows renders of no significance the assertion that there was a structural defect in their construction by Mr Teernstra.

35. As it seems to me on the evidence the only breach of lease proved was removal of fluorescent light tubes and the obligation to “decorate the inside of the property in the last 3 months of the lease period.” This obligation at least required the respondents to repaint the premises. Moreover the provision in the lease expressly required this to be done in the last 3 months of the lease. I do not think contrary to the submissions of Mr Carolan that this obligation could be fulfilled within a reasonable time after the lease expired. But in any event I would regard the period between 28 February 2014 and 3 April 2014 as beyond a reasonable period.

36. In the result I think that the only damages proved by the applicant which it is entitled to recover from the respondents is the cost of repainting the interior of the premises and the cost of replacing 48 fluorescent light tubes. It is difficult to calculate these losses from the material before the Tribunal which seems to comprise only Annexure A K to Mr Bressis Affidavit of 26 September 2014. Doing the best I can I would allow $1,500.00 for painting and $500.00 for replacement of the fluorescent tubes a total of $2,000.00. In view of the other works the applicant decided to carry out I decline to allow compensation for lost rent as the painting could reasonably have been carried out while the other work was performed. It would not be surprising that premises which had been occupied by one tenant for over 20 years might require some refurbishment to render them suitable for another tenant. It would also not be surprising that such refurbishment would take time and would not be encompassed by the rather basic covenant for reinstatement contained in the lease.

37. Unless either party wishes to make a submission as to costs there will no order as to costs. A party wishing to make a submission may do so within 14 days the other party to reply within 14 days. The matter will then be decided on the papers.

Orders

1. Respondents Kevin Geoffrey Lynch and Leanne Gai Lynch to pay to the applicant forthwith the sum of $2,000.00.

2. Subject to paragraph 37 above no order as to costs.

D Patten

Principal Member

Civil and Administrative Tribunal of New South Wales

3 March 2015

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 May 2015