The Daily Pty Limited v Wallis - [2013] NSWADT 152

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: The Daily Pty Limited v Wallis [2013] NSWADT 152
Hearing dates: 7 and 10 September 2012
Decision date: 08 July 2013
Jurisdiction: Retail Leases Division
Before: D Bluth, Judicial member
Decision:
1. Leanne Wallis and Mark Wallis are each jointly and severally liable to pay to The Daily Pty Limited the following amounts:
(a) $91,916.84 for unpaid rent and outgoings to 30 November 2011;
(b) Interest in the sum of $11,921.03 on rent and outgoings claimed in 1(a);
(c) Legal costs of default $3,276.24;
(d) Rent and outgoings from 1 December 2011 to 29 February 2012 for 3 months, $36,359.38;
(e) Rent and outgoings from 1 March 2012 to 27 June 2012 for 3 months and 27 days, $48,894.45
(f) Interest on the amounts (a)-(e);
2.The Daily Pty Limited is liable to pay Leanne Wallis and Mark Wallis the sum of $55,000.00.
3.No order as to costs.

Catchwords: Covenant for quiet enjoyment, retail shop lease section 3, compensation for disturbance section 34 and abatement of rent section 36 of Retail Leases Act 1994
Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited: Blandino & Ors v Giardini & Ors [2008] NSWADT AP55
Christofi v Mohammady [2013] NSWADTAP 10
Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83
Duarte & Ors v Mitchell & Ors [2007] NSWADT 276
Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC456
Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] 234 CLR 237
Lovecek VJ v Idola Pty Ltd & Ors [2011] NSWADT 18
Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSW LR p15
Mohammady v Christofi [2012] NSWADT 122
Mowena Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376
Paino v Paino [2008] NSWCA276
Roach v Braun [2011] NSWADTAP 40
Shevill & Anor v The Builders Licensing Board (1981-1982) 149 CLR 620
Watts v Rake (1960) HCA, BL 6000 90
Wenkart v Pittman [1998] 46NSWLR 502
Texts Cited: Halsbury's Laws of England, 3rd Ed, Vol. 23
McGregor on Damages, 15th Ed, 1988
Category: Principal judgment
Parties: The Daily Pty Limited (Applicant in 125005/Respondent in 125113)
Mark Wallis and Leanne Wallis (Respondents in 125005/Applicants in 125113)
Representation: Counsel
R Chia for the Applicant in 125005/Respondent in 125113
J Clifton for the Respondents in 125113/Applicants 125005
M Micelli (Applicant in 125005/Respondent in 125113)
Grogan & Webb (Respondents in 125113/Applicants in 125005)

File Number(s): 125005, 125113

reasons for decision

Background

The Applicant/cross respondent, the Daily Pty Limited (Daily) is the owner of a building at 5-9 Vista Street, Mosman (the building). On or about 1 March 2008 Daily entered into a lease with the first and second Respondents/cross applicants Mark and Leanne Wallis (Wallis) with respect to premises known as 5A Vista Street, Mosman (the premises).

The lease was for a period of five years commencing on 1 March 2008. The initial rent was…

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: [2013] NSWADT 152
Decision Date: 08 July 2013

CaseChat Overview and Summary

The Daily Pty Limited, a retail tenant, pursued legal action against Leanne Wallis and Mark Wallis, the landlords, regarding an alleged breach of covenant for quiet enjoyment, and seeking compensation for disturbance and abatement of rent under the Retail Leases Act 1994. The dispute arose from the landlords' interference with the tenant's business operations, leading to claims for unpaid rent, interest, and legal costs. The case was heard and determined in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues involved whether the landlords had breached the covenant for quiet enjoyment, whether the tenant was entitled to compensation for the disturbance, and if the tenant was entitled to an abatement of rent due to the landlords' actions. The court also had to decide the quantum of any compensation or abatement of rent that the tenant was entitled to receive.

In its decision, the tribunal found that the landlords had indeed breached the covenant for quiet enjoyment by interfering with the tenant's business. Consequently, the tenant was awarded compensation for the disturbance amounting to $55,000. Additionally, the tribunal ordered the landlords to pay the tenant for unpaid rent and outgoings, interest on those amounts, and legal costs of default. The tenant, however, was ordered to pay the landlords $55,000 in relation to the compensation awarded. The tribunal declined to make any orders regarding the costs of the proceeding.

In summary, the tribunal ruled in favour of the tenant on several counts, awarding compensation for the breach of covenant, unpaid rent, interest, and legal costs, while also requiring the tenant to pay a portion of the compensation awarded. No order was made regarding the costs of the proceeding.

Orders

Orders of the court

1. Leanne Wallis and Mark Wallis are each jointly and severally liable to pay to The Daily Pty Limited the following amounts:

(a) $91,916.84 for unpaid rent and outgoings to 30 November 2011;

(b) Interest in the sum of $11,921.03 on rent and outgoings claimed in 1(a);

(d) Rent and outgoings from 1 December 2011 to 29 February 2012 for 3 months, $36,359.38;

(e) Rent and outgoings from 1 March 2012 to 27 June 2012 for 3 months and 27 days, $48,894.45

(f) Interest on the amounts (a)-(e);

2.The Daily Pty Limited is liable to pay Leanne Wallis and Mark Wallis the sum of $55,000.00.

3.No order as to 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:	The Daily Pty Limited v Wallis [2013] NSWADT 152
Hearing dates:	7 and 10 September 2012
Decision date:	08 July 2013
Jurisdiction:	Retail Leases Division
Before:	D Bluth, Judicial member
Decision:	1. Leanne Wallis and Mark Wallis are each jointly and severally liable to pay to The Daily Pty Limited the following amounts: (a) $91,916.84 for unpaid rent and outgoings to 30 November 2011; (b) Interest in the sum of $11,921.03 on rent and outgoings claimed in 1(a); (c) Legal costs of default $3,276.24; (d) Rent and outgoings from 1 December 2011 to 29 February 2012 for 3 months, $36,359.38; (e) Rent and outgoings from 1 March 2012 to 27 June 2012 for 3 months and 27 days, $48,894.45 (f) Interest on the amounts (a)-(e); 2.The Daily Pty Limited is liable to pay Leanne Wallis and Mark Wallis the sum of $55,000.00. 3.No order as to costs.
Catchwords:	Covenant for quiet enjoyment, retail shop lease section 3, compensation for disturbance section 34 and abatement of rent section 36 of Retail Leases Act 1994
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	Blandino & Ors v Giardini & Ors [2008] NSWADT AP55 Christofi v Mohammady [2013] NSWADTAP 10 Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 Duarte & Ors v Mitchell & Ors [2007] NSWADT 276 Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC456 Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] 234 CLR 237 Lovecek VJ v Idola Pty Ltd & Ors [2011] NSWADT 18 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSW LR p15 Mohammady v Christofi [2012] NSWADT 122 Mowena Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 Paino v Paino [2008] NSWCA276 Roach v Braun [2011] NSWADTAP 40 Shevill & Anor v The Builders Licensing Board (1981-1982) 149 CLR 620 Watts v Rake (1960) HCA, BL 6000 90 Wenkart v Pittman [1998] 46NSWLR 502
Texts Cited:	Halsbury's Laws of England, 3rd Ed, Vol. 23 McGregor on Damages, 15th Ed, 1988
Category:	Principal judgment
Parties:	The Daily Pty Limited (Applicant in 125005/Respondent in 125113) Mark Wallis and Leanne Wallis (Respondents in 125005/Applicants in 125113)
Representation:	Counsel R Chia for the Applicant in 125005/Respondent in 125113 J Clifton for the Respondents in 125113/Applicants 125005 M Micelli (Applicant in 125005/Respondent in 125113) Grogan & Webb (Respondents in 125113/Applicants in 125005)
File Number(s):	125005, 125113