Charalambous v Yeung (RLD) - [2013] NSWADTAP 44

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 Member
Decision:
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 1994
Cases 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 12
Category: 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…

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.

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Details

Case: [2013] NSWADTAP 44
Decision Date: 27 September 2013

CaseChat Overview and Summary

The case of Charalambous v Yeung involved a dispute over a retail lease where the lessee was held liable for damage caused by a fire in the leased premises. The matter was heard in the NSW Supreme Court, Appeal Division. The lessee, Yeung, appealed a lower court decision that found him liable for the fire damage under the Civil Liability Act 2002. The primary issue before the court was whether the lessee could be held liable for the damage caused by the fire, considering the identification of the relevant risk of harm.

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

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:	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 Member
Decision:	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 1994
Cases 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 12
Category:	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