Christofi v Mohammady (RLD)

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Christofi v Mohammady (RLD) [2013] NSWADTAP 10

Hearing dates:

30 November 2012

Decision date:

26 February 2013

Jurisdiction:

Appeal Panel - Internal

Before:

M Chesterman, Deputy President
K Rickards, Judicial Member
J Schwager, Non-judicial Member

Decision:

1. The appeal is allowed in part.

2. In order 2 in the Tribunal's decision dated 22 June 2012, the amount ordered to be paid by the Respondents to the Applicant is reduced from $8,417.00 to $5,834.07.

3. The parties are to bear their own costs of the appeal.

Catchwords:

Retail lease - abatement of rent - diminished useability due to damage

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Lovecek v JV Idola Pty Ltd and ors [2011] NSWADT 18
Mohammady v Christofi [2012] NSWADT 122

Category:

Principal judgment

Parties:

George Christofi (First Appellant)
Elizabeth Christofi (Second Appellant)
Abdul Razul Mohammady (Respondent)

Representation:

George Xylas (Appellants)
Dehsabzi Lawyers (Respondent)

File Number(s):

129020

 Decision under appeal 

Citation:

Mohammady v Christofi [2012] NSWADT 122

Date of Decision:

2012-06-22 00:00:00

Before:

Retail Leases Division

File Number(s):

115012

reasons for decision

Background

1. This is an appeal against the decision of the Retail Leases Division in Mohammady v Christofi [2012] NSWADT 122. In that decision, delivered on 22 June 2012, the Tribunal held that Abdul Razul Mohammady, the lessee of retail shop premises in Granville (hereafter 'the Premises' or 'shop 5'), was entitled to recover the sum of $10,867.00 from the lessors, George and Elizabeth Christofi. The Tribunal also ordered the lessors to pay 50% of the lessee's costs.

1. The term of the lease between the parties ('the Lease') was from 1 April 2009 to 31 March 2012. The initial monthly rent was $1,906.66 including GST. The permitted use was the business of a tailor. It was common ground that the Lease was governed by the Retail Leases Act 1994 ('the RL Act').

1. The hearing by the Tribunal took place on 30 November and 22 December 2011. The only witnesses were the three parties: Mr Mohammady, the lessee, and Mr and Mrs Christofi, the lessors.

1. The sum ordered to be paid by the lessors to the lessee, $10,867.00, had two components: an award of $2,450.00 as compensation for 'loss of stock and garments', and an award of $8,417.00 by way of rent abatement. These awards were both based on findings that during the period from June 2009 through to mid-April 2011, rain had leaked through the ceiling, causing damage to the lessee's trading stock and diminishing the useability of the Premises.

1. The lessors filed a Notice of Appeal on 20 July 2012. The sole ground stated in it was that the Tribunal had erred in law through making a finding of fact for which there was no evidence. This finding related to the area of the ceiling of the Premises that had suffered from rain damage. It was claimed in the Notice that on account of this error the amount that the Tribunal…