Polley v Shoj
[2006] NSWADT 355
•14/12/2006
NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL RETAIL LEASES DIVISION
CITATION: Polley v Shoj [2006] NSWADT 355
PARTIES: APPLICANTS
Warwick George Polley
Rochelle Margurite Polley
RESPONDENT
Cami Shoj
FILE NUMBERS: 065127
HEARING DATES: On the papers
SUBMISSIONS CLOSED: 19/10/2006
DECISION DATE: 14/12/2006
BEFORE: Fox R - Judicial Member
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
CASES CITED:
APPLICATION: Claim for payment of money
MATTER FOR DECISION: Principal matter
APPLICANT REPRESENTATIVE: APPLICANTS
In person
RESPONDENT REPRESENTATIVE: RESPONDENT
In person
ORDERS: 1. Pursuant to Section 72(i)(a) Respondent to pay Applicant by way of debt and damages $2,799.00
No order for costs.
Reasons for Decision:
REASONS FOR DECISION
The Applicants are the landlords of lock-up strata title premises in the Cremorne Town Centre, Cremorne. The Respondent is the tenant of the premises, used as a shoe and accessory shop, pursuant to a 5-year lease with a 5-year option, the initial term commencing 31 March 2001 and ending 30 March 2006. The Respondent did not ever appear personally in the matter, although he did file substantial written submissions. The Applicants appeared in person at the various directions hearings. The Respondent did not ever appear personally in the matter although he did file substantial written submissions which included copies of correspondence back and forth between himself and the Applicants. The Applicants relied on an affidavit, establishing their expenditure and setting forth the situation in relation to the bond and the rent. Further, the Applicants had lodged copies of some correspondence with their present tenant, to establish the condition of the premises at the time of vacation. The Respondent’s responses in this regard confirm the condition of the premises.
This decision is made on the papers.
It is clear that:
(a) The Applicants purchased the premises some years after the Lease commenced.
(b) The Respondent fitted the premises out at the commencement of the Lease.
(c) The Respondent had been complaining of poor trading performance from early 2005.
(d) Negotiations for the rent on exercise of the option had taken place at an appropriate time late in 2005. The Respondent had a market valuation carried out which gave the market rent (exclusive of GST and promotion levy), to be approximately $860.00 per month. At that time the tenant was paying (again exclusive of GST and promotion levy), approximately $1,390.00 per month. The Applicant had offered a new rental which equated to approximately $1,470.00 per month, and eventually reduced that to approximately $1,290.00 per month (all exclusive of promotion levy and GST).
(e) The option was not exercised.
(f) The Respondent vacated the premises early in December of 2005.
(g) The Respondent had offered to sell the shelving and other fixtures to the Applicant but the Applicant did not agree.
(h) The Respondent removed an installed air-conditioner, sink, 24 ceiling down lights, and all shelving, resulting in a number of air-conditioner installation holes, plug holes in the walls where the shelves had been fixed, and wires hanging from the ceiling through holes which had accommodated the down lights, as well as exposed plumbing fixings.
(i) The last payment of rent had covered occupation for the month of November 2005.
(j) The Applicants called upon the bank guarantee held as bond in the sum of $3,750.00, which covered the unpaid rent for December 2005 and January 2006, leaving a surplus of $668.00.
(k) There is rent outstanding for months of February and March 2006 in the total sum of $3,082.00.
(l) Mediation did not resolve the matter.
The Applicants are plainly entitled to the rent.
I am satisfied that the items removed by the Respondent were tenant’s fixtures and so were covered by clause 11.01(d) of the Lease which allows the removal of these things provided that, “The Lessee shall in such removal do no damage to the premises and shall forthwith make good any damage which is done.”
The Applicant’s claim is deficient in that I was given no evidence of the cost of making good the ceiling:- i.e. making safe the wiring and patching the ceiling holes. Instead the Applicant has given proof of supply and installation of other lights. The Applicant can only claim the cost of these items if it be shown that such cost is less than the cost of patching and replastering the holes left by the old lights. The tax invoice for Bright Sparx Electrical Pty Ltd is for “Supply and install low voltage lights - repatch ceilings and walls ready for painting - $1,600.00.” There is no itemisation, and consequently I cannot distinguish between the cost of patching the walls, the cost of patching the ceiling, and the cost of supply and installation of the lights.
I do have an indication from the Respondent’s written submission that the lights which were removed were supplied at a cost of $30.00 each which would represent some $720.00, but of course I have no indication whether the lights now installed by the Applicant were of similar quality, or what the cost of installation might have been then, or the cost of reinstallation now.
The Administrative Decisions Tribunal Act (Section 77(3)) relieves me from the obligation of strict adherence to the rules of evidence, and I considered, especially in view of the small amounts involved, whether I was able to make some kind of assessment. However there is absolutely no way of drawing any indication of the various components of the Bright Sparx invoice, and consequently I would be doing little more than making a wild guess. I cannot do that, and it follows that the Applicants have not proven the cost of making good the damage to the ceiling.
Similar considerations apply in relation to the cost of installation and supply of the sink, again I have absolutely no indication of any amount which might equate to the make good component. It follows that the whole of the plumbing claimed must also be disallowed.
The claim for the cost of repainting is clearly valid and is allowed.
The amount to be paid by the Respondent to the Applicant pursuant to Section 72(i)(a) by way debt and damages is:
Rent $3,082.00
Painting and decorating $385.00
Total $3,467.00
Less bank guarantee credit $668.00
$2,799.00
The Applicant has made no claim for either cost or interest, and in any event, I make no Orders in that regard.
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