Cakirgoz v Crouch - [2008] NSWSC 1124

CITATION: Cakirgoz v Crouch [2008] NSWSC 1124

HEARING DATE(S): 24 October 2008

JUDGMENT DATE :
24 October 2008

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 24 October 2008

DECISION: Summons dismissed with costs; orders made on Cross Claim.

CATCHWORDS: LEASES – ABATEMENT OF RENT – Whether circumstances existed entitling lessee to abate rent until lessor effected repairs to premises. - HELD: No abatement justified either under lease or under s 36 Retail Leases Act.

LEGISLATION CITED: Retail Leases Act 1994 (NSW) – s 36

CATEGORY: Principal judgment

PARTIES: Mahmut Cakirgoz (Plaintiff/Cross Defendant)
Wayne Charles Crouch (Defendant/Cross Claimant)

FILE NUMBER(S): SC 2521/08

COUNSEL: Plaintiff/Cross Defendant in person
A.J. Grant (Defendant/Cross Claimant)

SOLICITORS: Thomas & Bisley (Defendant/Cross Claimant)

2521/08 Cakirgoz v Crouch

JUDGMENT – Ex tempore

24 October, 2008

Introduction
1 The Plaintiff, Mr Cakirgoz, is a litigant in person. He does not have a good command of English. His case is being conducted on his behalf by Mr Christopher Sharp, who has some financial interest, I gather, in the outcome, although that is not clearly explained. Mr Sharp is not a lawyer. Mr Grant of Counsel, who appears for the Defendant, does not oppose Mr Sharp conducting the case on Mr Cakirgoz's behalf. I make those remarks at the outset, because the case has been conducted in a rather ad hoc fashion in an endeavour by me to ensure that the real issues in the case emerge and are finally determined. 2 In his Summons, Mr Cakirgoz seeks relief in a form which the Court would not give in any event. However, the substance of Mr Cakirgoz's claim is clear enough. He contends that a lease under which he was a lessee has not been validly terminated by the Defendant. He also seeks an order that the Defendant carry out repairs to the leased premises to render them fit for occupation. 3 In order to determine the real issues in the case, I shall treat the Summons as seeking a declaration that the lease has not been validly terminated, and an order that the Defendant perform an alleged covenant to keep the premises in good repair by doing certain work. 4 The Defendant (“Mr Crouch”) has filed a Cross Claim in which he seeks an order for possession of the premises upon the ground that the lease was validly terminated on 9 May 2008. The Cross Claim also seeks mesne profits from 9 May 2008 and damages, being unpaid rent from 14 January 2008 until judgment, and thereafter until the expiry of the lease in November 2008.

The facts
5 On 24 July 2006, Mr Cakirgoz entered into a lease with Mr Crouch whereby Mr Crouch leased to Mr Cakirgoz the ground floor of premises in Addison Street, Shellharbour, for use as a fish and chips shop. The term of the lease was to expire on 29 November 2008. Mr Cakirgoz had, in fact, traded in the shop since March 2000, although through a company as lessee.…

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 Cakirgoz v Crouch

Details

AGLC: Cakirgoz v Crouch [2008] NSWSC 1124
Case: [2008] NSWSC 1124
Decision Date: 24 October 2008

CaseChat Overview and Summary

The matter of Cakirgoz v Crouch before the court concerned a dispute between the parties over the abatement of rent. The lessee sought to reduce the rent payable due to the condition of the premises, which they alleged was not in a state fit for occupation. The court was tasked with determining whether the circumstances justified the lessee's decision to abate the rent until the lessor addressed the issues with the premises.

The legal issues revolved around whether the lessee was entitled to reduce the rent under the terms of the lease and whether the Retail Leases Act provided any grounds for such a reduction. The court needed to examine the specific provisions of the lease agreement and the relevant statutory framework to ascertain the rights and obligations of both parties.

In examining the lease, the court found that it did not contain any terms that allowed for a reduction in rent due to the condition of the premises. Additionally, the court considered the statutory provisions under the Retail Leases Act, specifically section 36, which deals with the lessor's obligations regarding repairs. The court concluded that the act did not entitle the lessee to abate the rent in the circumstances presented. Therefore, the court held that the lessee was not justified in reducing the rent and the abatement was not permissible under either the lease or the statutory provisions.

Consequently, the court ruled in favour of the lessor and against the lessee, stating that no abatement of rent was justified. The court ordered the lessee to continue paying the full rent as stipulated in the lease agreement.

Orders