Herbert v Lee; Lee v Hemphill - [2023] NSWCATCD 177

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177
Hearing dates: 03 October 2023
Date of orders: 17 October 2023
Decision date: 17 October 2023
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
1. The respondents in proceedings COM 23/24375 are to repay $11,325.61 to the applicants immediately.
2. Proceedings COM 23/30593 are dismissed.

Catchwords:
LEASES AND TENANCIES — Retail leases — Misleading or deceptive conduct
LEASES AND TENANCIES — Retail leases — Repairs — Lessor’s duty – whether the duty extends to part of the common property - whether the lessee is not liable to pay rent where complaint about the condition of the common property

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 36, Sch 4, cl 3
Conveyancing (Strata Titles) Act 1961 (NSW)
Retail Leases Act 1994 (NSW), ss 7, 36, 62D, 63, 70, 71, 72
Retail Leases Regulation 2022 (NSW), Sch 1, cl 4
Strata Schemes (Freehold Development) Act 1973 (NSW), Sch 4, cl 3
Strata Schemes Management Act 2015 (NSW), s 142

Cases Cited:
Cominos v Di Rico [2016] NSWCATAP 5
Larsen v The Owners - Strata Plan No. 3573 [2022] NSWCATCD 43
Lekhwar v Singh [2022] NSWCATCD 108

Texts Cited:
None cited

Category: Principal judgment
Parties:
COM 23/24375:
Cara Stella Bianchetto Herbert and Lachlan Heathcote Hemphill (Applicants)
Yuen Ha Lee and Ronan Delaney (Respondents)
COM 23/30593:
Yuen Ha Lee and Ronan Delaney (Applicants)
Lachlan Heathcote Hemphill and Cara Stella Bianchetto Herbert (Respondents)
Representation: Cara Stella Bianchetto Herbert and Lachlan Heathcote Hemphill (self-represented)
Yuen Ha Lee and Ronan Delaney (self-represented)

File Number(s): COM 23/24375; COM 23/30593
Publication restriction: Nil

REASONS FOR DECISION

Overview

These two proceedings involve disputes arising out of a retail shop lease between the lessors, Ronan Delaney (Mr Delaney) and Yuen Ha Lee (Mr Lee), and the lessees, Lachlan Heathcote Hemphill (Mr Hemphill) and Cara Stella Bianchetto Herbert (Ms Herbert), in which they each make claims against the other under the Retail Leases Act 1994 (NSW) (RL Act). I have referred to the parties as the lessors and lessees as appropriate except where it has been necessary to refer to one of them.
The key issue in the two proceedings was whether the lessees are liable under a retail shop lease in circumstances the lessors made the misleading representation that they had the right to occupy common property in connection with their use of the retail shop. I have found in favour of the lessees on this key issue.
I have decided to make a money order for $11,325.61 in favour of the lessees, and to dismiss the claims of the lessors.

Introduction

As the facts were largely not in dispute, I have set out the factual background. I have then briefly set out the history of the two proceedings and the details of the hearing. After identifying the issues for determination, I have summarised the evidence of the parties which has not…

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.

Continue reading Herbert v Lee; Lee v Hemphill

Details

AGLC: Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177
Case: [2023] NSWCATCD 177
Decision Date: 17 October 2023

CaseChat Overview and Summary

The matter before the court involved two proceedings, COM 23/24375 and COM 23/30593, between Herbert, the lessee of a retail space, and Lee, the lessor, along with Hemphill, the mortgagee. The dispute centred on issues of misleading or deceptive conduct, the duty of the lessor to repair common property, and the lessee's liability to pay rent when the common property is in disrepair. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining several legal issues, including whether the lessor’s duty to repair common property extends to only certain parts of that property, and whether the lessee is exempt from paying rent if the common property is in poor condition. The court also had to consider whether the conduct of the lessor amounted to misleading or deceptive conduct under the Australian Consumer Law.

The court held that the lessor's duty to repair common property extends to the entirety of the common property, and not just specific parts. Furthermore, the court ruled that the lessee's obligation to pay rent is not contingent upon the condition of the common property. The court also found that the lessor's conduct did not constitute misleading or deceptive conduct. Consequently, the respondents were ordered to repay the applicants $11,325.61 immediately, and the proceedings COM 23/30593 were dismissed.

Orders

Orders of the court

1. The respondents in proceedings COM 23/24375 are to repay $11,325.61 to the applicants immediately.

2. Proceedings COM 23/30593 are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Herbert v Lee; Lee v Hemphill [2023] NSWCATCD 177
Hearing dates:	03 October 2023
Date of orders:	17 October 2023
Decision date:	17 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	1. The respondents in proceedings COM 23/24375 are to repay $11,325.61 to the applicants immediately. 2. Proceedings COM 23/30593 are dismissed.
Catchwords:	LEASES AND TENANCIES — Retail leases — Misleading or deceptive conduct LEASES AND TENANCIES — Retail leases — Repairs — Lessor’s duty – whether the duty extends to part of the common property - whether the lessee is not liable to pay rent where complaint about the condition of the common property
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 36, Sch 4, cl 3 Conveyancing (Strata Titles) Act 1961 (NSW) Retail Leases Act 1994 (NSW), ss 7, 36, 62D, 63, 70, 71, 72 Retail Leases Regulation 2022 (NSW), Sch 1, cl 4 Strata Schemes (Freehold Development) Act 1973 (NSW), Sch 4, cl 3 Strata Schemes Management Act 2015 (NSW), s 142
Cases Cited:	Cominos v Di Rico [2016] NSWCATAP 5 Larsen v The Owners - Strata Plan No. 3573 [2022] NSWCATCD 43 Lekhwar v Singh [2022] NSWCATCD 108
Texts Cited:	None cited
Category:	Principal judgment
Parties:	COM 23/24375: Cara Stella Bianchetto Herbert and Lachlan Heathcote Hemphill (Applicants) Yuen Ha Lee and Ronan Delaney (Respondents) COM 23/30593: Yuen Ha Lee and Ronan Delaney (Applicants) Lachlan Heathcote Hemphill and Cara Stella Bianchetto Herbert (Respondents)
Representation:	Cara Stella Bianchetto Herbert and Lachlan Heathcote Hemphill (self-represented) Yuen Ha Lee and Ronan Delaney (self-represented)
File Number(s):	COM 23/24375; COM 23/30593
Publication restriction:	Nil