Charalambous v Yeung

[2013] NSWADT 86

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Charalambous -v- Yeung [2013] NSWADT 86

Hearing dates:

5 & 6 February 2013

Decision date:

24 April 2013

Jurisdiction:

Retail Leases Division

Before:

K Rickards, Judicial Member

Decision:

1.The Application is dismissed.

2.Unless either party files and serve submissions as to costs within 14 days of the date of this decision, there will be no order as to costs. If either party files and serves submissions as to costs within this period, the other party is to file and serve any submissions in reply within 28 days of the date of this decision, and a decision as to costs will then be made upon the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Legislation Cited:

Retail Leases Act 1994; Civil Liability Act 2002; Administrative Decisions Tribunal Act 1997

Cases Cited:

Lyons Road Pty Ltd v The Owners Strata Plan 38722 [2008] NSWADTAP 28;
Manley v Alexander [2005] HCA 79;
Sibraa v Brown [2012] NSWCA 328; Australian Safeway Stores Pty Ltd v Zaluzna [1987] 126 CLR 479;
Wyong Shire Council v Shirt [1980] HCA 12; Adeels Palace Pty Ltd v Moubarak & Anor [2009] ACA 48

Category:

Principal judgment

Parties:

Neophytos Charalambous (Applicant)
Eric Au Yeung (Respondent)

Representation:

Counsel
N Allan (Applicant);
R Perla (Respondent)
Bicknell & Monteith (Applicant);
Turks Legal (Respondent)

File Number(s):

125083

reasons for decision

Background to Dispute

1. The Applicant is the owner of a building located at 460 Bunnerong Road, Matraville, New South Wales which consists of a ground floor shop and a first floor residence. The Applicant leased the shop located on the ground floor ("the premises") to the Respondent.

1. The premises were used at all relevant times as a Laundromat. This use is listed within Schedule 1 of the Retail Leases Act 1994 (the "RL Act"); accordingly the premises are deemed to be a "retail shop".

1. Late in the evening of 5 July 2010, or in the early hours of the following morning, a fire occurred at the premises which caused extensive damage and caused the premises to be unusable for a significant period of time.

1. The Respondent did not return to operate his business at the premises following the fire. The term of the subject retail lease agreement was until 30 April 2012. The Respondent had paid rent in advance up to 1 August 2010, but paid no further rent after that time.

1. Following the fire, the Applicant proceeded to repair the premises. The building was subsequently leased to a new tenant on 16 May 2011.

1. The Applicant claims the sum of $62,688.24 from the Respondent for expenses said to have been incurred because of the fire. The components of this amount are set out in paragraph 19 of the Application and are as follows:

(a)   the cost of repairs $28,926.00

(b)   The loss of rent at $1,584.92 per month

incl. GST from 2 August 2010 to 15

May 2011 being 9 months…