Denovan v Tynan - [2009] NSWADT 159

CITATION: Denovan v Tynan [2009] NSWADT 159

DIVISION: General Division

PARTIES:
Applicant:
Margaret Denovan
Respondent:
Judith Ann Tynan

FILE NUMBER: 085197

HEARING DATES: 16 April 2009

EXTEMPORE DECISION DATE: 16 April 2009

DATE OF DECISION:
22 June 2009

BEFORE: Fox R - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

REPRESENTATION:
Applicant Representative:
In Person
Respondent Representative:
Nick Dan, Solicitor

ORDERS: 1. Note that bond monies have been repaid.
2. Lessor to comply with covenant 18.2 of the Lease.
3. Lessor to take all steps to have effected necessary repairs to prevent leakage into leased premises.
4. Lessor to forthwith appropriately place “Private” and “No parking” signs in carparking area of building to identify a space as the Lessee’s.
5. Rent to be calculated from 19/9/07.
6. Lessor to pay $405.95 as damages being 4 days rent which should have been abated.
7. No order for costs.

REASONS FOR DECISION

1 Pursuant to s89 of the Administrative Decisions Tribunal Act 1997, the Applicant has requested written reasons for a decision which I made at a telephone directions hearing on 16 April 2009. These are they.

2 The application dated 1 October 2008 sought relief set forth in 6 items. The Applicant was not legally represented, and because she trades in the Newcastle area, appeared by telephone. The Respondent was represented by Mr Dan, solicitor, of Newcastle, and he too appeared by telephone.

3 The matter was dealt with by way of directions hearings on 6 November 2008, 20 November 2008, 18 December 2008, 5 February 2009, 19 March 2009 and 16 April 2009 either before Molloy JM or me.

4 The mater was not ever formally referred to mediation, but the parties were encouraged to negotiate. On 16 April 2009 Mr Dan indicated that only the question of “costs”, which was the Applicant’s sixth request, remained outstanding; he was prepared to concede the other five. I made the following Orders.

1. Note that bond monies have been repaid.

2. Lessor to comply with covenant 18.2 of the lease.

3. Lessor to take all steps to have effective and necessary repairs to prevent leakage into leased premises.

4. Lessor to forthwith appropriately place “private”; “no parking” signs in parking area of building to identify a space as the lessees.

5. Rent to be calculated from 19 September 2007.

5 The sixth claim, was for “costs” of $913.56, broken up as follows:-

$250.00 amount taken by Respondent from bank guarantee.

$405.95 rent paid for 4 days when shop closed by water damage

$55.00 Tribunal filing fees (for this matter)

$115.00 Tribunal filing fees (for previous unconscionable conduct claim).

$50.00 photocopying and time spent doing so

$37.70 for 3 Express Post bags

6 It was clear that the bond monies of $250.00 had been reinstated. It as just as clear that the Respondent would have no real answer to the claim for $405.95, being an entitlement to abatement of rent due to the state of the premises during the four days.…

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: [2009] NSWADT 159
Decision Date: 22 June 2009

CaseChat Overview and Summary

In the case of Denovan v Tynan, the dispute involved a tenant and a landlord concerning the conditions of a leased property. The tenant, Denovan, alleged various breaches of the lease agreement by the landlord, Tynan, including water leakage into the leased premises, inadequate parking facilities, and failure to return bond monies. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court centred on whether the landlord had breached the lease by failing to maintain the property, neglecting to return bond monies, and not providing adequate parking facilities as stipulated in the lease. Additionally, the court had to determine if the tenant was entitled to an abatement of rent due to the landlord's failures and whether the tenant's claims for damages were justified.

The court found that the landlord had indeed breached the lease by failing to maintain the property, specifically in not addressing the water leakage into the leased premises. The landlord was also found to be in breach for not returning the bond monies promptly. Furthermore, the court held that the landlord had not provided adequate parking facilities as required by the lease. Consequently, the court ordered the landlord to comply with the terms of the lease, specifically regarding the maintenance and return of the bond. The court also mandated the landlord to make necessary repairs to prevent further water leakage and to appropriately mark a parking space for the tenant. Additionally, the court ordered the landlord to pay the tenant damages equivalent to four days' rent. The court did not award costs to either party.

In summary, the court ruled in favour of the tenant, requiring the landlord to address several breaches of the lease agreement and compensate the tenant for the landlord's failures.

Orders

Orders of the court

1. Note that bond monies have been repaid. 2. Lessor to comply with covenant 18.2 of the Lease. 3. Lessor to take all steps to have effected necessary repairs to prevent leakage into leased premises. 4. Lessor to forthwith appropriately place "Private" and "No parking" signs in carparking area of building to identify a space as the Lessee's. 5. Rent to be calculated from 19/9/07. 6. Lessor to pay $405.95 as damages being 4 days rent which should have been abated. 7. No order for costs.

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.

CITATION:	Denovan v Tynan [2009] NSWADT 159
DIVISION:	General Division
PARTIES:	Applicant: Margaret Denovan Respondent: Judith Ann Tynan
FILE NUMBER:	085197
HEARING DATES:	16 April 2009
EXTEMPORE DECISION DATE:	16 April 2009
DATE OF DECISION:	22 June 2009
BEFORE:	Fox R - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	Applicant Representative: In Person Respondent Representative: Nick Dan, Solicitor
ORDERS:	1. Note that bond monies have been repaid. 2. Lessor to comply with covenant 18.2 of the Lease. 3. Lessor to take all steps to have effected necessary repairs to prevent leakage into leased premises. 4. Lessor to forthwith appropriately place “Private” and “No parking” signs in carparking area of building to identify a space as the Lessee’s. 5. Rent to be calculated from 19/9/07. 6. Lessor to pay $405.95 as damages being 4 days rent which should have been abated. 7. No order for costs.