Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Charalambous v Yeung (RLD) [2013] NSWADTAP 44 Hearing dates: 9 August 2013 Decision date: 27 September 2013 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President
P Molony, Judicial Member
J Butlin, Non-judicial MemberDecision: 1. The appeal is dismissed.
2. Any application by the Respondent for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions he may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.
Catchwords: Retail lease - whether lessee liable for damage caused by fire in premises - Civil Liability Act 2002 - identification of relevant risk of harm Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil Liability Act 2002
Retail Leases Act 1994Cases Cited: Chapman v Hearse (1961) 106 CLR 112
Charalambous v Yeung [2013] NSWADT 86
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Jolley v Sutton London Borough Council [2000] 3 All ER 409
Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] AC 617
Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 645
Shoalhaven City Council v Pender [2013] NSWCA 210
Sibraa v Brown [2012] NSWCA 328
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12Category: Principal judgment Parties: Neophytous Charalambous (Appellant)
Eric Au Yeung (Respondent)Representation: N Allan (Appellant)
R Perla (Respondent)
Bicknell & Moneith Lawyers (Appellant)
Turks Legal (Respondent)
File Number(s): 139019 Decision under appeal
- Citation:
- Charalambous v Yeung [2013] NSWADT 86
- Date of Decision:
- 2013-04-24 00:00:00
- Before:
- Retail Leases Division
- File Number(s):
- 125083
reasons for decision
Introduction
In this appeal, the Appellant, Neophytos Charalambous, challenges a decision in the Retail Leases Division of the Tribunal (Charalambous v Yeung [2013] NSWADT 86) dismissing his claim for damages against the Respondent, Eric Au Yeung.
On 1 May 2009, the Appellant granted to the Respondent a lease ('the Lease') relating to premises ('the Premises') on the ground floor of a building that he owned in Matraville. The Lease had a term of three years, with an option to renew for a further three years, and was governed by the Retail Leases Act 1994 ('the RL Act'). The monthly rent was $1,584.92.
In accordance with the terms of the Lease, the Respondent operated a laundromat in the Premises. Late in the evening of 5 July 2010, or in the early hours of the following morning, a fire broke out at the Premises. It caused…
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- Case
- [2013] NSWADTAP 44
- Decision Date
CaseChat Overview and Summary
The court examined whether the risk of harm identified under the Civil Liability Act 2002 included the risk of fire damage and whether the lessee's actions or omissions contributed to the occurrence of the fire. The court considered the nature of the lease agreement, the lessee's responsibilities under the agreement, and the statutory provisions regarding liability for damage. The court concluded that the risk of harm identified in the Act was broad enough to encompass the risk of fire damage, and the lessee's negligence in maintaining the premises contributed to the fire.
The Appeal Panel found that the lower court's decision was correct and dismissed the appeal. The court held that the lessee was indeed liable for the damage caused by the fire under the Civil Liability Act 2002. The court further directed that any application for costs must be filed and served within a specified period, with submissions to be determined on the papers unless a hearing was required. This decision reinforces the importance of lessees adhering to their responsibilities under a retail lease agreement, particularly in relation to maintaining the premises and preventing potential hazards.
Orders
Orders of the court
1. The appeal is dismissed.
2. Any application by the Respondent for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions he may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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