Mohammady v Christofi

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Mohammady v Christofi [2012] NSWADT 122

Hearing dates:

30 November 2011 and 22 December 2011

Decision date:

22 June 2012

Jurisdiction:

Retail Leases Division

Before:

D Bluth Judicial Member

Decision:

1.The Respondents to pay to the Applicant the sum of $2,450.00 as compensation for loss of stock and garments.

2.The Respondents to pay to the Applicant the sum of $8,417.00 by way of abatement of rent.

3.The Respondents to pay 50% of the Applicant's costs as are agreed or assessed upon a party/party basis

Catchwords:

Covenant for quiet enjoyment ss33, 34 & 36 of Retail Leases Act, 1994

Legislation Cited:

Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994

Cases Cited:

Bonzali v Ersoy (No.2) [2010] NSW ADT 132
Duarte & Ors v Mitchell & Ors [2007] NSW ADT 276
Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSW LR p15
Plant v Meriton Properties Pty Ltd (No.2) [2010] NSW ADT AP20
Spathis v Hanave Investment Co Pty Ltd & Anor (2002) NSW SC 304
Spuds Surf Chatswood Pty Ltdv PT Ltd (RLD) [2012] NSW ADTAP 2
Telstra Corporation Ltd v Sicard [2009] NSWSC 827

Texts Cited:

Halsbury's Laws of England, 3rd Ed

Category:

Principal judgment

Parties:

Abdul Razul Mohammady (Applicant)
Elizabeth and George Christofi (Respondent)

Representation:

Dehsabzi Lawyers (Applicant)
G Xylas (Respondents)

File Number(s):

115012

REASONS FOR DECISION

Introduction

1. This case concerns disputes that arose between the lessors and the lessee of retail shop premises as a result of water entering into the premises through the roof and the ceiling and damaging stock and trade of the lessee. The lessee also complains of construction work near the premises undertaken by the lessor or with the lessor's consent which affected his trade.

1. The lessee is the Applicant Abdul Razul Mohammady and the lessors are the Respondents George and Elizabeth Christofi.

1. The lease was for three years commencing on 1 April 2009 and terminating on 31 March 2012 and was not registered (the Lease). The monthly rent was $1,906.66 inclusive of GST for the first 12 months then increased from May 2010 to $1,963.87 per month inclusive of GST. The use of the premises is as a tailor.

1. The premises is Shop 5, 47 49 South Street, Granville part of a shopping arcade comprising six shops. The shops in the arcade at the commencement of the lease when looking from South Street into the arcade noted from a sketch plan submitted with the Application are: shop 1was a butcher, shop 2 was a cosmetic shop and shop 3 was a sports goods shop. At the rear of the arcade directly opposite South Street is shop 4 a fruit market and then on the right is shop 5 a tailor, the subject of this dispute and finally there is shop 6 fronting South Street being a restaurant and takeaway shop.

1. The Applicant sought in the Application for Original Decision compensation for the following amounts:

(1) product and stock damages worth…