Mahmood v Christofi (No 2) - [2012] NSWADT 251

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Mahmood v Christofi (No 2) [2012] NSWADT 251
Hearing dates: 9 December 2011 and 10 February 2012, written submissions 20 April 2012
Decision date: 30 November 2012
Jurisdiction: Retail Leases Division
Before: M Hole, Judicial Member
Decision:
1. Allow $1,081.69 to the applicant on sale of stock, this amount to be set off against rent owing by applicant.
2. The applicant breached a fundamental term of the lease being payment of rent.
3. The lessors provided sufficient opportunity for the applicant to remove his goods, fixtures and fittings from the premises.
4. The lessors are not responsible for the damages claimed by the applicant.
5. The applicant's business was interrupted by the activities of another lessee in the arcade for a period of two (2) weeks during October/November 2010 and an allowance for no rent to be payable for this period is to be made by the lessors against outstanding rent.
6. There is insufficient evidence to disclose responsibility for the removal of the forklift from the premises.
7. The actions taken by the lessors to secure the goods and equipment of the applicant were sufficient.
8. The lessors are not responsible for the loss of business damages claimed by the applicant. The applicant was aware as at 26 August 2010 (referred to in his facsimile of that date) of the proposals submitted to the Council which included construction of stairs in the arcade contrary to his evidence that he was not aware of this proposal until February 2011.
9. Each party to pay own costs.

Legislation Cited: Retail Leases Act 1994 (Ss 34 and 72)
Category: Principal judgment
Parties: Abdullah Al Mahmood (Applicant)
George Christofi (First Respondent)
Elizabeth Christofi (Second Respondent)
Representation: Counsel
J R Young (Applicant)
Mooney & Kennedy (Applicant)
D M Carson (Respondent)

File Number(s): 105210 and 115014

REasons for decision

On 9 February 2011 Abdullah Al Mahmood ("the applicant") filed an Application No 115014 seeking various orders concerning a lease between him and George and Elizabeth Christofi ("the lessors") dated 6 June 2009. Subsequently the application was amended by an Amended Application filed on 1 July 2011. The Amended Application sought orders pursuant to Sections 34 and 72 of the Retail Lease Act 1994 and compensation pursuant to the particulars of loss set out on pages 6 to 8 of the Amended Application.

The Particulars of Loss set out in the Amended Application are:

LIST OF ITEMS STOLEN FROM SUPA SAVE FRUIT SHOP

Item Description

Approx. value

1.

Various rice stock from front of the forklift;

$1800

2.

Two drawer shelves missing from the back of the counter containing all of the lessee's sales records, receipts, diaries and cash, till money and daily phone card sales;

$1572

3.

Overseas phone card stock (Optus, livera, lyca, Telstra and various phone cards) + ph card sale cash $736;

$10,536

4.

Various drinks from the shelves, fridge and stock;

$2000

5.

Cooking oil and bulk oil from the shelves and…

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: [2012] NSWADT 251
Decision Date: 30 November 2012

CaseChat Overview and Summary

Mahmood v Christofi (No 2) was a case involving the applicant, Mahmood, and the respondents, Christofi, before a court in Australia. The central issue was the dispute over the sale of stock, rent arrears, and the removal of goods, fixtures, and fittings from leased premises. Mahmood sought an allowance for the sale of his stock, and the respondents sought to recover unpaid rent and other damages. The court was tasked with determining whether Mahmood had breached the lease terms, the adequacy of the respondents' efforts to remove his goods, and the extent of any damages claimed by Mahmood.

The primary legal issues revolved around whether Mahmood had breached the fundamental term of the lease by failing to pay rent and whether the respondents had acted reasonably in providing an opportunity for Mahmood to remove his belongings. The court also had to assess the validity of Mahmood's claims for loss of business and damages, as well as the responsibility for the removal of a forklift from the premises. Furthermore, the court needed to consider whether the respondents' actions in securing Mahmood's goods were sufficient and whether they were liable for any damages claimed by Mahmood.

The court's reasoning focused on the evidence provided by both parties, examining the terms of the lease and the actions taken by the respondents in attempting to recover their property. The court determined that Mahmood had indeed breached the fundamental term of the lease by not paying rent. It was also found that the respondents had provided ample opportunity for Mahmood to remove his goods, fixtures, and fittings from the premises. The court found insufficient evidence to determine responsibility for the removal of the forklift and ruled that the respondents' actions to secure Mahmood's belongings were sufficient. Additionally, the court found that Mahmood was aware of certain proposals, contradicting his later evidence, and thus the respondents were not liable for the loss of business damages he claimed.

The court ordered that Mahmood be allowed $1,081.69 for the sale of his stock, which would be set off against the outstanding rent. It was also determined that the respondents were not responsible for the damages claimed by Mahmood. An allowance for no rent was to be made for the period during which Mahmood's business was interrupted by another lessee. The court ruled that there was insufficient evidence to determine responsibility for the removal of the forklift. The actions taken by the respondents were deemed sufficient, and they were not held liable for the loss of business damages claimed by Mahmood. Each party was ordered to pay their own costs.

Orders

Orders of the court

1. Allow $1,081.69 to the applicant on sale of stock, this amount to be set off against rent owing by applicant.

2. The applicant breached a fundamental term of the lease being payment of rent.

3. The lessors provided sufficient opportunity for the applicant to remove his goods, fixtures and fittings from the premises.

4. The lessors are not responsible for the damages claimed by the applicant.

5. The applicant's business was interrupted by the activities of another lessee in the arcade for a period of two (2) weeks during October/November 2010 and an allowance for no rent to be payable for this period is to be made by the lessors against outstanding rent.

6. There is insufficient evidence to disclose responsibility for the removal of the forklift from the premises.

7. The actions taken by the lessors to secure the goods and equipment of the applicant were sufficient.

8. The lessors are not responsible for the loss of business damages claimed by the applicant. The applicant was aware as at 26 August 2010 (referred to in his facsimile of that date) of the proposals submitted to the Council which included construction of stairs in the arcade contrary to his evidence that he was not aware of this proposal until February 2011.

9. Each party to pay own 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.

Medium Neutral Citation:	Mahmood v Christofi (No 2) [2012] NSWADT 251
Hearing dates:	9 December 2011 and 10 February 2012, written submissions 20 April 2012
Decision date:	30 November 2012
Jurisdiction:	Retail Leases Division
Before:	M Hole, Judicial Member
Decision:	1. Allow $1,081.69 to the applicant on sale of stock, this amount to be set off against rent owing by applicant. 2. The applicant breached a fundamental term of the lease being payment of rent. 3. The lessors provided sufficient opportunity for the applicant to remove his goods, fixtures and fittings from the premises. 4. The lessors are not responsible for the damages claimed by the applicant. 5. The applicant's business was interrupted by the activities of another lessee in the arcade for a period of two (2) weeks during October/November 2010 and an allowance for no rent to be payable for this period is to be made by the lessors against outstanding rent. 6. There is insufficient evidence to disclose responsibility for the removal of the forklift from the premises. 7. The actions taken by the lessors to secure the goods and equipment of the applicant were sufficient. 8. The lessors are not responsible for the loss of business damages claimed by the applicant. The applicant was aware as at 26 August 2010 (referred to in his facsimile of that date) of the proposals submitted to the Council which included construction of stairs in the arcade contrary to his evidence that he was not aware of this proposal until February 2011. 9. Each party to pay own costs.
Legislation Cited:	Retail Leases Act 1994 (Ss 34 and 72)
Category:	Principal judgment
Parties:	Abdullah Al Mahmood (Applicant) George Christofi (First Respondent) Elizabeth Christofi (Second Respondent)
Representation:	Counsel J R Young (Applicant) Mooney & Kennedy (Applicant) D M Carson (Respondent)
File Number(s):	105210 and 115014

Item Description		Approx. value
1.	Various rice stock from front of the forklift;	$1800
2.	Two drawer shelves missing from the back of the counter containing all of the lessee's sales records, receipts, diaries and cash, till money and daily phone card sales;	$1572
3.	Overseas phone card stock (Optus, livera, lyca, Telstra and various phone cards) + ph card sale cash $736;	$10,536
4.	Various drinks from the shelves, fridge and stock;	$2000
5.	Cooking oil and bulk oil from the shelves and…