Panayiotou v Prieston

[2013] NSWADT 273

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Panayiotou v Prieston [2013] NSWADT 273
Hearing dates:	20 and 24 May 2013
Decision date:	29 November 2013
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President
Decision:	Application dismissed
Catchwords:	Retail lease - claim for variation of lease, refund of rent and damages
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Nicolaou and Anor v GPT Re Limited [2010] NSWADT 151 W & K Holdings v Mayo [2013] 1063
Category:	Principal judgment
Parties:	Patty Panayiotou (Applicant) Anna M Prieston (Respondent)
Representation:	Counsel M W Sneddon (Respondent) P Panayiotou (Applicant in person) MK Grew Solicitors (Respondent)
File Number(s):	125146

reasons for decision

Introduction

1. On 5 October 2012, the lessee applicant, Patty Panayiotou, lodged a retail leases claim and an unconscionable conduct claim against the lessor respondent, Anna Prieston. Both claims were made pursuant to the Retail Leases Act 1994 (RL Act).

1. In December 2011, the applicant and the respondent executed a written lease for premises, at 188 Victoria Road Drummoyne (the leased premises), from which the applicant operates a retail bridal gown business.

1. At the time the applicant lodged her claims, she also lodged an application for urgent interim order. That order was dismissed, on 18 October 2012. However, the Tribunal made orders for the filing and serving of evidence by the parties. On 13 December 2012, the applicant informed the Tribunal that she did not press her unconscionable conduct claim and the matter proceeded on the basis of her retail leases claim. That claim was heard on 20 and 24 May 2013.

1. In her application, the applicant sought a number of orders, including orders to give effect to the 14 matters raised, by her former solicitor, in a letter, dated 27 July 2012, to the applicant's solicitor. Many of these were not orders the Tribunal could make, in regard to a 'retail tenancy claim' (see s 72 of the RL Act).

1. A 'retail tenancy claim' is defined in s 70 of the RL Act and it relevantly provides as follows:

70 Definitions

In this Division:

retail tenancy claim means any of the following:

(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:

(i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund),

(ii) a claim for relief from payment of a specified sum of money,

(iii) a claim for the doing of specified work or the provision of specified services,

(iv) a claim for the surrender of possession of specified premises,

(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,

(vi) a claim for relief against forfeiture,

(vii) a claim regarding the rectification of the lease,

(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,

(ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease,

(x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E,

(xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond,

(b) ...

1. To the extent the applicant's application was a 'retail tenancy claim' the orders sought by the applicant were as follows:

(a) variation of the lease as follows:

- commencement date to be altered to the date on which the awning over the shop window was completed;

- no rent payable for 12 months from the new commencement date;

- rent to be calculated at a rate of $200 per week plus GST for a further 5 years;

- a further option of 3 plus 3 years and during this option period the rent to be $300 per week plus GST, but in the event the competing bridal shop next door closes down and no other competing business opens in its place, a weekly rental of $400 plus GST;

(b) rent paid to date be refunded to the applicant;

(c) the respondent to do all things necessary at its cost to:

- repair and make safe the wooden floor in the toilet of the leased premises;

- relocate the upstairs tenants electrical switchbox from the leased premises and until such time as the upstairs tenants electricity is separately metered the respondent to pay the applicant's electricity costs;

- repair and make safe the roof of the building so that there is no risk of water seeping through to any part of the leased premises; and

(d) $60,000 for loss of business due to the delay and negligence of the respondent in failing to have completed all the necessary work prior to the commencement of the lease.

1. The orders sought relate to the applicant's claims that the respondent failed to undertake the work agreed to prior to the execution of the lease, as well as failing to repair a leaking roof, and as a result she was unable to open her shop for trading for some months after the lease commencement date causing her to lose business.

1. The onus is on the applicant to establish her claims, giving rise to the orders sought.

1. While I have found that the respondent failed to undertake the work agreed to prior to the execution of the lease, for the reasons set out below I have found that the applicant has otherwise failed to establish her claims were a breach of the lease, giving rise to the orders sought.

The lease

1. The written lease, executed by the parties, was a one-year lease with an option to renew for 2 years plus another 3 years. The commencement date of the lease was stated to be 15 February 2012.

1. The lease provided for rent to be paid, from the date of commencement, at an annual rate of $22,880.00 (inclusive of GST)(see Item 13, in Annexure A, to the lease). That amount was to be paid by monthly instalments of $1,906.67. Where the applicant exercised her options, the lease provided that rent was to be assessed at current market rent as at the date of renewal. Annual rent was otherwise to be increased in accordance with the Consumer Price Index.

1. In regard to outgoings, Item 14, in Annexure A, to the lease provided that the applicant's share of outgoings was 'NIL'. Outgoings were defined in that clause as being: 'council rates and charges, water sewerage and drainage charges and the landlord's insurance and land tax'. The following was added at the bottom of this Item:

'The Lessee shall at all times pay for their own usage and excess fees for water sewerage drainage and garbage removal and shall pay for all other service or usage related fees whether payable to the Council, Sydney Water or any other statutory authority but only where the premises is separately metered or charged for such charges.'

1. The permitted use of the premises was the manufacture and retail of wedding gowns and associated products and accessories.

1. Clause 7 of the lease dealt with 'Condition and repair'. It relevantly provided as follows:

CLAUSE 7 CONDITION AND REPAIRS

Who is to repair the property?

7.1 The lessor must -

7.1.1 maintain in a state of good condition and serviceable repair the roof, the ceilings, the external walls ... and the floors of the property and must fix structural defects:

7.1.2 maintain the property in a structurally sound condition; and

7.1.3 maintain essential services

7.2 ...

7.3 The lessee must also -

7.3.1 ...

...

7.3.4 where the property is a lot in a strata scheme:

7.3.4.1 ...

7.3.4.2 permit the owners corporation, temporarily, to close any part of the common property for the purpose of making and effecting repairs to it.

...

1. Clause 11 of the lease made provision for the lessor's other responsibilities. It relevantly provided:

CLAUSE 11 LESSOR'S OTHER RESPONSIBILITIES

What are the lessor's other responsibilities?

11.1 ...

11.2 ...

11.3 If the property is part of a building owned or controlled by the lessor -

11.3.1 the lessor must maintain in reasonable structural condition all parts of the building that the lessee can use under the lease; and

11.3.2 if the property has facilities and service connections shared in common with other persons the lessor must

11.3.2.1 allow reasonable use of the facilities and service connections including -

- the right for the lessee and other persons to come and go to and from the property over the areas provided for access;

- access by the lessee to service connections; and

- the right for the lessee's customers to park vehicles in any area set aside for customer parking, subject to any reasonable rules made by the lessor.

11.3.3.2 maintain the facilities and service connections in reasonable condition.

The evidence

1. The applicant relied on a number of affidavits sworn by her. Attached to the affidavits were a number of documents, emails and photographs of the leased premises from February 2012. Attached to the applicant's affidavit, sworn on 8 November 2012, was a copy of a video, allegedly taken on 8 March 2012, picturing water leaking from a ceiling. At the hearing, counsel for the respondent, cross-examined the applicant in regard to her evidence.

1. The respondent did not file any evidence, nor did she give any oral evidence. Instead she relied on 3 affidavits sworn by her husband, Nikolas Prieston, and an affidavit sworn by Craig Davies and Roger Mickhail. Mr Davies, of Warwick Williams Real Estate, was the respondent's managing agent of the leased premises in 2011 to the early part of 2012. Mr Mickhail, is the proprietor of his own real estate agency and has been the respondent's managing agent since November 2012.

1. Mr Prieston, Mr Davies and Mr Mickhail also gave oral evidence at the hearing and were cross-examined by the applicant. The respondent also tendered into evidence a chain of email exchanges between the applicant and the residential tenant in regard to the electricity box.

1. It was the evidence of the respondent's husband that he was authorised to give evidence on behalf of his wife. He also said that he was the one who had full responsibility for the leased premises on behalf of his wife.

1. The sequence of events, to the extent relevant to the issues, as evidenced in the material before the Tribunal, is set out below.

1. Some time in early November 2011, the applicant had a discussion with Mr Davies about the availability of new premises to rent for her bridal gown business. Mr Davies was the agent managing the premises the applicant was leasing at that time. These premises, I understand were close to the respondent's premises.

1. The leased premises, the subject of this application, are part of a larger two-storey building owned by the respondent. The building is divided into 5 separate premises, of which 2 are retail premises and the remainder (3) are residential premises. There are 2 residential premises up stairs and the third residential premises is behind the premises that were leased by the applicant. The retail premises adjoin each other on the ground floor.

1. Some time prior to 21 November 2011, with the consent of Mr Davies, the applicant accessed the premises with her electrician. After having access the premises, the applicant sent an email to Mr Davies, informing him that the electricity box was non-compliant with current safety requirements and in the event of a fire her claims would not be accepted. She also said she had been advised that she should have her own 'electricity box'. She noted that she was looking for another shop 'due to safety reasons in relation' to he current shop 'so this issue needs to be addressed if I am to sign a lease.'

1. As I understand the evidence, the leased premises, as inspected by the applicant in November 2011, did not have its own electricity fuse box or electricity meter. These were shared with the upstairs residential tenancy.

1. The single electricity fuse box was in the leased premises and the corresponding single electricity meter was located in the wall of the adjoining premises, together with the electricity meters for the other premises in the building. I understand, the former lessee of the leased premises and the residential tenant, were happy with the single electricity meter and fuse box and shared the cost of electricity bills. However, for safety reasons and otherwise, the applicant was not satisfied with this arrangement and wanted them separated.

1. In her email to Mr Davies, the applicant noted that the respondent's tradesmen were using the premises as 'their workroom' for renovating the respondent's retail premises next door. The applicant said that the tradesmen were causing damage to the carpet.

1. It would appear that during her inspection of the premises, the applicant expressed concern about the leaky and unsightly awning above the shop window of the leased premises and also raised this with the respondent's husband. In his evidence, the respondent's husband said that he agreed to repair the rust holes in the awning and also repaint it.

1. On 24 November 2011, the applicant signed the Lessor's Disclosure Statement (see ss 11 and 11A of the RL Act). At item 1.4 of the Disclosure Statement, a tick is placed in the box next to 'separate utility meter-electricity.' At item 2.2 a tick is placed in the box 'No' under the words 'Is the permitted use described in item 2.1 exclusive to the lessee'. The permitted use is described as 'retailing of wedding dresses'. At item 8.1 the words 'Owner to provide separate electricity meter' is identified as work to be carried out, by the respondent, before the date the lease was to commence. At item 10.2 the rent free period is described as '10/12/11 to 15/2/2012' and the lease commencement date is stated to be '15/2/2012'.

1. On 9 December 2011, the applicant met with her solicitor and signed the lease.

1. The applicant said that she obtained the keys to the premises, on or about 12 December 2011. On receiving the keys she changed the locks to the premises and gave a set of the new keys to Mr Davies so that the respondent's electrician could 'separate the electricity meter located in the restaurant La Kasbar next door and to install two electrical boxes, one for my business and one for ..., the residential tenant living above the shop, as the previous business located there and the residential tenant would split the electricity bills.'

1. In regard to the awning, on 17 January 2012, Mr Davies sent an email to the applicant in which, he said 'the owner is waiting to get approval to revamp the façade next door & will do the awning then.' He also said that the respondent's electrician was back from holidays that week and should start in the next two weeks 'but I would not worry because the longer it takes less electricity you pay.' The applicant responded the same day. In regard to the awning, the applicant said she took it that her awning would also be 'replaced and painted'. In regard to the availability of the respondent's electrician, the applicant said that she thought it had been agreed between the lawyers that the electrical work would be done by 10 January 2012. She said that until this was done her electrician could not install her light fittings and this needed to be done before she could move in. She said she had spent the whole of the Christmas and New Year break cleaning the premises of dust and dirt left by the respondent's 'tradies'.

1. On 27 January 2012, the applicant sent Mr Davies an email asking what was the point of allowing her additional access time to fit out her shop when she was unable to do so as her tradesmen were not able to do their work until the electricity box was made compliant. Mr Davies responded the following day. He said he had been trying to get the electrician but he had no reply - he said he thought he must be away. He said he was waiting to hear from the 'owner' as to what he wanted to do and he would contact the applicant the following Monday.

1. On Monday, 30 January 2012, Mr Davies sent an email to the applicant stating:

'The owner has said he will remove the awning this Saturday 4/2/11 subject to the weather then replace it the Saturday after 11/2/11 as he was required to do prior to the lease commencing, so then you can put up the sign up (sic).

This does not stop (sic) from opening the shop now & start to trade.'

1. The applicant responded to Mr Davies the following day. She said:

'How does the awning make it possible for me to start trading when the electricity meter has not yet been separated and the electricity box be made compliant so that:

1- my electrician can install my lighting

2- the security company can install my back to base alarm and smoke detector

3 - the new sign light box installed and connected.

Craig, until all these can be done I can't:

1 - have my carpet cleaned

2 - my shop fittings installed

3 - my furniture delivered

4 - then my stock moved in

Craig, ... I must say that I am really not impressed with all the delays as I have lost over a month in which to pack up my current shop, whilst I try to keep my current business running, to have my tradies work on my new shop and to move my fittings, furnishings and stock into it. The painting of the new shop was finished two weeks ago but I haven't been able to proceed any further until the landlord's electrician has done the work required.

... I was informed that all of the work was to be done by the 10-01-2012.

... There is no way that I will be open by the 15th February especially as all that is going to be done by the 11-02-2012 is going to be the replacement of the awnings so that means it will be at least another two weeks or even more behind schedule as who knows when the landlord's electrician will be back from his holidays. This whole thing has been handled completely unprofessionally.'

1. Around this time the applicant sent another email to Mr Davies in which she said:

'... I will contact the landlords (sic) solicitors also as our agreement is in breech (sic) and is costing me time and money. They wouldn't agree to having my lease commence at the end of February when my current lease expires and now they are holding up their end of the agreement. As if the economy isn't enough, I am now going to be closed down to pack and move during the busiest time of the season, when newly engaged brides are returning from their holidays which will affect my orders for the whole year. Do the landlords have only one electrician?

I had blocked off booking appointments having planned on moving into the shop last Wednesday, one week prior to pack up my current shop and have the carpet dry cleaned, my alarm, sign and lighting installed into 188 and one week to unpack in the new shop. ...

1. On 31 January 2012, there was a further email exchange between the applicant and Mr Davies. In her email, the applicant said she needed to meet with Mr Davies 'ASAP in relation to the electricity box and business'. Mr Davies responded by saying:

Hi Patty,

The owner has the electrician coming back to work next door tomorrow & can have a look at the switchboard but he says he does not think there is a problem with your electrician doing his work as he is only splitting the meters.

He will let me know when he is coming so let me know your mobile & will ring you when he is around.

1. The applicant responded by reiterating that her electrician informed her that he would not do the work, as the electricity box was non compliant. She also noted that she had been assured that this work would be done in November 2011. She went on to say that, at that stage, she had no alternative but to pack up her current shop and put everything into storage 'because there is no possible way on earth that I am going to be moving into 188 before my current lease expires.'

1. On 18 February 2012, the respondent's electrician installed a new electricity fuse box in the leased premises. In doing so the respondent's electrician installed, a separate electricity fuse box for the leased premises and another separate fuse box for the residential tenancy upstairs. At the same time, the respondent's electrician separated the joint electricity meter box in the adjoining retail premises. That is, a separate electricity meter for the leased premises and another separate meter for the residential tenancy upstairs were installed.

1. It would appear the applicant was not satisfied with this electrical work and wanted the respondent to move the upstairs residential tenancy electrical fuse box removed from the leased premises to upstairs. It was her evidence that the fuse box being located in her leased premises caused considerable inconvenience to her and the tenant when a fuse blew. The applicant said she had been called a number of times by the tenant to switch the fuses in the fuse box after a fuse had blown due to water seeping through the ceiling of the upstairs premises.

1. It was the evidence of the respondent's husband that, due to the age of the building, it was not possible to move the electricity fuse box of the residential premises from the applicant's leased premises.

1. The respondent's husband tendered into evidence a copy of the certificate of compliance for the electrical work undertaken by the respondent's electrician. That certificate states that the respondent's electrician tested the work that was done, on 23 February 2012.

1. In his oral evidence, Mr Davies said that when separating the electricity meters, the electrician gave the electricity supplier the same address for both meters. That address was that of the residential tenant above the leased premises. He said the applicant had refused to open an account with the electricity supplier in regard to the meter that supplies her leased premises with electricity. Accordingly, the residential tenant has been receiving both bills and since the separation of the meters, the bills for the leased premises remain outstanding. However, no claim has been made in regard to these outstanding bills.

1. It is the evidence of the respondent's husband that the roof sheeting on the awning above the leased premises was removed on 18 February 2012. He said he thought the sheeting had not been removed previously due to bad weather. The applicant asserted that with the removal of the roofing the existing sign box under the awning was exposed and filled with rain water and became damaged. As a result she said she had no visual signage on her shop.

1. On 23 February 2012, the Local Council (City of Canada Bay Council) issued an order, addressed to the respondent, that work being undertaken to the shop front (i.e. the shop front of the adjoining leased premises), including the awning across both premises, was to stop immediately. The order stated that the reason for issuing the order was because no development approval had been obtained for the work being undertaken.

1. On 27 February 2012, the applicant moved into the premises as her lease on the other premises was due to expire the following day.

1. On 28 February 2012, a structural engineer inspected the awning and advised the Council that the awning was in a 'very dilapidated condition' and needed 'remedial works as a matter of urgency.' The letter went on to explain the nature of those works. I understand that this work was subsequently undertaken.

1. In her oral evidence, the applicant agreed that on or about, 6 March 2012, her electrician installed her chandelier and back to base alarm. He also re-wired the existing down lights in the leased premises.

1. On 8 March 2012, the tenant in the residence above the applicant's premises appears to have taken a video of water leaking from the ceiling. The respondent's husband accepted that there was a very heavy down pour that day. He also said that each time he received a report about leakage he attended to it. He said it was often difficult to identify where water was coming into the premises. However, this period of rain enable him to identify the source of the leak and he had it repaired. He said, to his knowledge there had been no further leakage.

1. Attached to the affidavit of the respondent's husband was an inter-office memo of the Council, dated 14 March 2012, and a series of email exchanges between the applicant and the Council in regard to the colour that the awning and shop front were to be painted. The Council had initiated a 'Paint Your Shop Front Programme' in the latter part of 2011. The respondent's husband had registered to be part of that Programme and as a result the respondent was entitled to be reimbursed a fixed amount of the costs to repaint. The colours shop fronts could be painted, I understand, were limited to those prescribed by the Council's heritage advisor.

1. The applicant said she commenced paying rent from 15 March 2012. Attached to the affidavit of Mr Davies is a copy of his company's Tennant Trust ledger for the leased premises, up until 16 October 2012. Unfortunately, its contents have not been explained. However, I understand that there is no dispute that the applicant has paid rent since 15 March 2012.

1. Between 4 March and the end of that month, there were a number of email exchanges between the applicant and the Council in regard to the colour the awning was to be painted. In early April 2012, the Council agreed to a colour scheme for the shop front, including the awning, and advised the respondent's husband accordingly. It is the contention of the respondent's husband that the delays in painting and finishing the awning was primarily due to the applicant's conduct in changing her mind about the colour. The applicant asserts that the repainting of the awning was not due to her changing her mind - it was due to the Council deciding what colour the awning should be painted.

1. On 12 May 2012, the respondent's tradesman installed the roof sheeting onto the awning. It was the applicant's oral evidence that she commenced trading from the premises on this day. The applicant said she commenced trading after she was told that the respondent would not install a separate meter box in her premises.

1. In regard to the light box, the respondent's husband said that at the time of negotiating the lease, the light box under the awning of the leased premises was not operational. He said no promise was made to the applicant that it would be repaired. He also said that the applicant had advised that she was going to transport and install the light box she was using at her then leased premises. However, after the awning was repaired, the applicant decided not to transport her previous light box. So the respondent's husband decided to repair the existing light box, which was done in June 2012. He said the applicant did not receive Council approval for her sign until some time later and her sign was installed in September 2012.

1. The applicant said it took so long to have her signage in the light box because it was difficult to find a company that made a sign for a light box of the kind installed by the respondent.

1. At the hearing the applicant continued to express concern about the electricity fuse box of the upstairs residential tenancy being located in her leased premises and ongoing issues about dampness.

Consideration

1. While there is considerable overlap between the various claims of the applicant, set out below, are my findings in regard to each of these claims. In this regard, the onus is on her to prove her claim.

1. The orders that the Tribunal has power to make The orders the Tribunal has power to make, in regard to a 'retail tenancy claim', are set out in s 72 of the RL Act, which relevantly provides:

72 Powers of Tribunal relating to retail tenancy claims

(1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:

(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,

(b) ...,

(c) an order that a party to the proceedings:

(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or

(ii) ..., or

(iii) ..., or

(iv) do or perform, or refrain from doing or performing, any specified act, matter or thing,

(d) ...,

(e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease,

(f) an order:

(i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or

(ii) ..., or

(iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or

(iv) ...,

(g) such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)-(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties.

(2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.

(3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section.

(4) ...

Variation of the lease

1. As I have stated, the applicant seeks an order that the commencement date of the lease be varied from 15 February 2012 to 12 May 2012, being the date on which she commenced trading. The applicant did not point to any particular provision of s 72 which gave the Tribunal power to make such an order.

1. The respondent contended that the only power vested in the Tribunal to vary an executed lease is that set out in para 72(1)(e) of the RL Act. In this regard, the respondent also pointed out that the Tribunal's power under this para is restricted to those circumstances where the parties to the lease consent to the rectification and in this application there is no such consent.

1. In my view, even if there had been consent, the circumstances relied on by the applicant are not such to warrant an order for rectification of the executed lease.

1. At common law there is a presumption that a written lease, executed by the parties, is the true record of their agreement. However, this presumption can be displaced if there is clear evidence of a mistake in recording their agreement. The key principle of rectification were explained by Sackar J, in W & K Holdings v Mayo [2013] 1063, at [66], as follows:

[66] The key principle, basically stated, is that a party seeking rectification of a contract will need to advance "convincing proof" to show that at the time of execution of the contract the parties held a "common intention" which was inconsistent with what is provided for in the written contract (Pukallus v Cameron (1982) 180 CLR 447 at 452 per Wilson J with whom Gibbs CJ agreed), and to show what their common intention was (Slee v Warke (1949) 86 CLR 271 at 281 per Rich, Dixon and Williams JJ). However, the requirement for "convincing proof" does not alter the civil standard of proof on the balance of probabilities. ...

1. In this application, the evidence points to a common intention, at the time of execution of the lease, that the lease was to commence on 15 February 2012. This was the date recorded on the Lessor Disclosure Statement and then on the written lease. There was clearly no mistake in the recording of the intention of the parties as to the commencement date.

1. While the parties to a lease can agree to vary the terms of a lease, the Tribunal does not have power to do so. Accordingly, the applicant's claim, to the extent it seeks variation of the lease, have not been established.

Refund of rent

1. As I have indicated, the applicant seeks a refund of rent that she had paid up to the date of hearing. I understand that she makes this claim on the basis of her alleged inability to commence trading before 12 May 2012, the alleged delay in the installation of her light box, her alleged loss of business and the alleged failure of the respondent to move the electricity switch box of the residential tenant from her leased premises.

1. I accept that the applicant was delayed in being able to commence trading from the leased premises. That delay was due to the respondent's failure to install a separate the electricity meter and electricity switch box for the leased premises until after the lease commencement date. These, the respondent had agreed would be installed before the commencement date. The respondent was on notice that the applicant's electrician could not undertake any work on the leased premises until such time as this work had been completed. This work, the respondent knew to be part of the applicant's fit-out work.

1. That applicant's electrical work was completed on or about 8 March 2012. And while I accept the evidence about the ongoing awning repairs, I am not persuaded that this prevented the applicant from commencing to trade from the leased premises shortly after her electrical work was completed. I note from the pictures tendered by the applicant that she had already installed her stock and fittings into the leased premises before this date. On her own evidence, the applicant had painted the leased premises some weeks before hand and the photos show that by 14 March 2012, she had her display model, dressed, in her shop window. On the basis of this evidence it is difficult to see how the respondent could be responsible for her not commencing to trade shortly after her electrical work was done.

1. I am also not persuaded that the delays, from 18 February 2012, in completing the awning repairs were solely attributable to the respondent. As I have explained, the respondent had agreed to repair and paint the awning prior to the commencement date. This she failed to do. That the awning required more work than anticipated does not mean that the respondent has any additional liability to the applicant. There is no evidence to suggest that at the time the respondent's husband undertook to do the repair work that he knew it in effect required replacement.

1. Nevertheless, the question is whether the failure by the respondent to undertake the agreed electrical and awning work, prior to the commencement date, was a breach of the lease and if it is whether the applicant has suffered loss as a result.

1. The applicant has not pointed to any term of the lease that she asserts the respondent has breached. Nor in my opinion, are the respondent's delays a breach of a term of the lease. However, the respondent's delays are arguably a possible breach of a pre-lease representation by the respondent: see ss 10 and 62D of the RL Act. The applicant has not made a claim of this nature and even if she had made such a claim she would have needed to establish that at the time the representation was made, the respondent knew it was false or misleading: see Nicolaou and Anor v GPT Re Limited [2010] NSWADT 151 at [28] to [43]. And even if the applicant were to establish this, it is difficult see how she could make a claim for the re-imbursement of rent as she was in possession of the premises at the commencement of the lease and the respondent gave her a rent free period to 15 March 2012. This was a date that post-dated her electrician having completed his work.

1. In my view, there is no basis to the applicant's claim about the respondent refusing to move the residential tenant's electricity fuse box from her leased premises. While I can understand the applicant's frustration in having this electricity fuse box in her leased premises, on the evidence before the Tribunal, at no time did the respondent agree to move this box. Indeed the evidence of the respondent's husband was that it was not possible to do so given the structure of the building, which was quite old. Hence, in the absence of the applicant establishing that the electricity fuse box creates a disturbance to her quiet enjoyment of the leased premises, there is no basis for her claim. This does not mean that the residential tenant has no claim for it to be moved.

1. Nor in my opinion, has the applicant established that the respondent was responsible for the delay in installing the light box. Even if this were to be established, together with a delay in repairing the awning, in my view, the applicant has not established that these delays caused harm to her business. In this regard, I note that the applicant's photographs show that she had placed signage on her shop window as early as 18 February 2012. And as I have explained, the applicant's shop window appears to have been set up with a full display not long after that. These were clearly visible from the street and while I understand this was far from what the applicant wanted for her business, the evidence does not support a finding that the awning works and the lack of a sign adversely affected her business.

1. Accordingly, I find that this aspect of the applicant's claim has not been established.

Repairs

1. As I have indicated above, the repairs sought by the applicant are (a) the wooden floor in the toilet, (b) moving the electricity switch box for the residential premises upstairs and (c) repairing the roof. In regard to (b) I reiterate my findings above.

1. The applicant asserted that the leaking roof had resulted in water penetrating from the residential tenancy upstairs into the ceiling of her leased premises and this had caused electricity shortages and stains in ceiling of the toilet. As I have mentioned, the respondent did not dispute that water had penetrated the roof of the building in March 2012. This occurred at a time of very heavy rainfall. Subsequently, the respondent repaired the roof. Mr Davies, who inspected the leased premises at that time, said that the roof leak into the residential tenancy upstairs was not in the vicinity of the applicant's leased premises. He said the applicant had complained about a leak into the ceiling of her leased premises and that this was attended to immediately. He said the cause of the leak was identified as coming from the shower upstairs. This he said was repaired and no further complaints were received.

1. Mr Davies also said that he was made aware of a single power cut, which was due to the leak from the upstairs shower. Mr Mickhail also gave evidence that on 14 March 2012, on the instructions of the respondent's solicitor, he attended the leased premises and inspected the ceiling and the toilet floor for dampness. He said he could not identify any dampness.

1. The applicant tendered into evidence photographs she took of readings on a machine that she said she used to measure the moisture level on the ceiling and the floor of the leased premises. Unfortunately, without a proper explanation, from an appropriately qualified person, on how to interpret these readings, I am unable to place any weight on them.

1. In regard to the toilet floor, it was the evidence of the applicant that the water penetration from the upstairs residential tenancy had penetrated her toilet floor. Mr Davies said that the respondent had painted the floor in waterproof paint. He had painted it in a colour requested by the applicant and as I have indicated, it was the evidence of Mr Mickhail that when he inspected the floor there was no evidence of any water or dampness. Mr Davies and Mr Mickhail were both cross-examined by the applicant and they adhered to their evidence in this regard.

1. While I accept that the applicant has given truthful evidence, to the best of her recollection, in my view, in light of the evidence of Mr Davies and Mr Mickhail, and in the absence of any independent evidence from an appropriately qualified person about the issue of dampness within and water penetration into the leased premises, I am unable to find that the respondent has failed to undertake appropriate repairs as asserted by the applicant.

1. Accordingly, I find that the applicant has failed to establish this aspect of her claim.

Loss of business

1. As I have explained, it is the contention of the applicant that due to the alleged failures of the respondent she has lost business.

1. In light of my findings above, the applicant has also failed to establish this claim.

Conclusions and orders

1. On the basis of my findings above, the applicant has failed to establish her retail leases claims against the respondent. Accordingly, the appropriate order is to dismiss her application.

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Decision last updated: 29 November 2013