Braun v Roach - [2011] NSWADT 31

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Braun v Roach [2011] NSWADT 31
Hearing dates: 19 August 2010
Decision date: 21 February 2011
Jurisdiction: Retail Leases Division
Before: D Bluth, Judicial Member
Decision:
The Tribunal orders
1)The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008.
2)The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008.
3)The Respondent is to pay to the Applicant the following:
a)outstanding rent of $14,400.00;
b)interest on the outstanding rent at 10% per annum;
c)survey fees of $825.00;
d)legal costs of $2,230.91;
e)costs of tax invoices of $5,379.00.
4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3).
5)Terms may be filed upon calculation of the amount owed by the Respondent to the Applicant (including interest).
6)No order as to costs, save that should either party file and serve an application for costs accompanied by appropriate submission, within 14 days, then the other party is to file and serve its reply within a further fourteen days and the tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act at 1997, s76, unless persuaded that there should be oral submissions;

Catchwords: Binding Lease, Mitigation of Damages
Legislation Cited: Retail Leases Act 1994
Cases Cited: Masters v Cameron (1954) 91 CLR 353
Dong v West Services Pty Limited (2010) NSW ADT 150
Blandino & Ors v Giardini & Ors (RDL 2008) (NSW ADTAP 55)
Category: Principal judgment
Parties: Peter Braun (Applicant)
Una Jayneen Roach (Respondent)
Representation: Russo & Partners (Applicant)
Collins & Thompson (Respondent)

File Number(s): 095175

Reasons for Decision

This is an application for Original Decision filed by the Applicant, Peter Braun as executor of the estate of the late Mavis Irene Kirkwood (Applicant) against Una Jayneen Roach (Respondent).

Background

By Memorandum of Lease registered 3976664 the Respondent leased premises at 272 Bobbin Head Road, Turramurra being a lock up shop) (Premises) from Mavis Irene Kirkwood from 1 May 1998 for a period of five years with an option to renew for a further five years (the Original Lease). The Respondent remained in occupation pursuant to a holding over clause after the term of the lease expired.

Mavis Irene Kirkwood died on 16 June 2000. By probate granted 23 August 2000, the Applicant was appointed one of the executors of the estate.

A further lease was discussed between the Applicant and the Respondent. The term of that lease was for one year commencing on 1 November 2007 and terminating on 31 October 2008 (the Second Lease). The rent was $38,383.00 per annum payable by monthly instalments of $3,198.58 per month.

The Respondent remained in the Premises from 1 November 2007 and paid the rent until 28 February 2008.

By letter dated 26 March 2008, from the Respondent's lawyers, the Respondent purported to terminate the Second Lease.…

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 Braun v Roach

Details

AGLC: Braun v Roach [2011] NSWADT 31
Case: [2011] NSWADT 31
Decision Date: 21 February 2011

CaseChat Overview and Summary

In the case of Braun v Roach, the dispute involved the termination of a lease agreement between the Applicant and the Respondent. The lease was initially for a period of twelve months, from 1 November 2007 to 31 October 2008. However, the Respondent repudiated the lease, and the Applicant accepted this repudiation, terminating the lease on or about 28 March 2008. The Applicant subsequently sought compensation for the early termination, claiming outstanding rent, interest, survey fees, legal costs, and other expenses, while also crediting the Respondent for a certain amount. The case was heard by the Tribunal, which was required to determine the appropriate compensation due to the Applicant for the Respondent's repudiation of the lease agreement.

The primary legal issues before the Tribunal were whether the Applicant was entitled to compensation for the early termination of the lease and, if so, what amount was appropriate. The Applicant argued that the Respondent's repudiation of the lease entitled them to damages for the loss of the lease and the expenses incurred as a result. The Respondent, on the other hand, contended that the Applicant had not taken reasonable steps to mitigate their losses and, as a result, the compensation should be reduced. The Tribunal had to consider the principles of mitigation of damages and whether the Applicant had acted reasonably in minimising their losses following the repudiation.

The Tribunal found that the Respondent had indeed repudiated the lease, and the Applicant had accepted this repudiation, leading to the termination of the lease. The Tribunal held that the Applicant was entitled to compensation for the outstanding rent, interest, survey fees, legal costs, and other expenses as a result of the early termination. However, the Tribunal also considered the principle of mitigation of damages and determined that the Applicant had not taken all reasonable steps to mitigate their losses. As a result, the Tribunal reduced the compensation payable by the Respondent by the amount of $1,800.00. The Tribunal then ordered the Respondent to pay the Applicant the specified amount, less the credit of $1,800.00, and outlined the terms for the calculation of the amount owed, including interest. The Tribunal made no order regarding costs but allowed for the possibility of applications for costs within a specified timeframe.

In conclusion, the Tribunal ruled in favour of the Applicant, ordering the Respondent to pay compensation for the early termination of the lease, less the credit for the Applicant's failure to mitigate their losses. The Tribunal set out the specific amounts owed and the terms for calculating the total compensation, including interest. The case highlights the importance of both parties fulfilling their obligations under a lease agreement and the consequences of repudiation, as well as the need for the non-breaching party to take reasonable steps to minimise their losses following a breach.

Orders

Orders of the court

The Tribunal orders

1)The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008.

2)The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008.

3)The Respondent is to pay to the Applicant the following:

a)outstanding rent of $14,400.00;

b)interest on the outstanding rent at 10% per annum;

c)survey fees of $825.00;

d)legal costs of $2,230.91;

e)costs of tax invoices of $5,379.00.

4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3).

5)Terms may be filed upon calculation of the amount owed by the Respondent to the Applicant (including interest).

6)No order as to costs, save that should either party file and serve an application for costs accompanied by appropriate submission, within 14 days, then the other party is to file and serve its reply within a further fourteen days and the tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act at 1997, s76, unless persuaded that there should be oral submissions;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Braun v Roach [2011] NSWADT 31
Hearing dates:	19 August 2010
Decision date:	21 February 2011
Jurisdiction:	Retail Leases Division
Before:	D Bluth, Judicial Member
Decision:	The Tribunal orders 1)The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008. 2)The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008. 3)The Respondent is to pay to the Applicant the following: a)outstanding rent of $14,400.00; b)interest on the outstanding rent at 10% per annum; c)survey fees of $825.00; d)legal costs of $2,230.91; e)costs of tax invoices of $5,379.00. 4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3). 5)Terms may be filed upon calculation of the amount owed by the Respondent to the Applicant (including interest). 6)No order as to costs, save that should either party file and serve an application for costs accompanied by appropriate submission, within 14 days, then the other party is to file and serve its reply within a further fourteen days and the tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act at 1997, s76, unless persuaded that there should be oral submissions;
Catchwords:	Binding Lease, Mitigation of Damages
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Masters v Cameron (1954) 91 CLR 353 Dong v West Services Pty Limited (2010) NSW ADT 150 Blandino & Ors v Giardini & Ors (RDL 2008) (NSW ADTAP 55)
Category:	Principal judgment
Parties:	Peter Braun (Applicant) Una Jayneen Roach (Respondent)
Representation:	Russo & Partners (Applicant) Collins & Thompson (Respondent)
File Number(s):	095175