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Young v Lamb (No 2)

Young v Lamb (No 2)

Case [2001] NSWSC 1014 9 November 2001

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CITATION: Young v Lamb (No.2) [2001] NSWSC 1014

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5096/98

HEARING DATE(S): 8 November 2001

JUDGMENT DATE:
9 November 2001

PARTIES :

Robert Francis Patrick Young (P)
Kenneth John Lamb (D1)
Louise Ann Lamb (D2)
William Thomas Newell (D3)
Dianne Margaret Newell (D4)

JUDGMENT OF: Austin J

COUNSEL : M Heath (P)
S Dixon (D)

SOLICITORS: Button Hawdon & McMahon (Batemans Bay) (P)
Daryl Hurst (Moruya) (D)

CATCHWORDS: CONTRACT - assessment of damages - tenants' breach of contract to renew lease - loss of rent - damage to demised premises would have caused rent to abate if tenant had performed the contract by renewing the lease - damages for loss of rent reduced by amount corresponding to abatement - mitigation of loss - landlord failed to find tenant for three year duration of renewed term - whether landlord had mitigated loss

CASES CITED: British Westinghouse Co v Underground Railway [1912] AC 673
Buchanan v Byrnes (1983) 3 CLR 179
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Marshall v Mackintosh (1898) 78 LT 750
Nangus Pty Ltd v Charles Donovan Pty Ltd [1990] VR 184
NLS Pty Ltd v Hughes (1966) 120 CLR 583
Progressive Mailing House v Tabali Pty Ltd (1985) 157 CLR 17
Re Eastdoro Pty Ltd (No 2) [1990] 1 Qd R 424
Wenkart v Pitman (1998) 46 NSWLR 502

DECISION: Judgment for plaintiff in the sum of $120,629 (loss of rent $106,148 and interest $14,481)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 9 NOVEMBER 2001

5096/98 ROBERT FRANCIS PATRICK YOUNG V KENNETH JOHN LAMB & ORS

HIS HONOUR :

Facts

1 The plaintiff, by summons filed on 22 December 1998 and subsequently a statement of claim, sought a declaration that the defendants had validly exercised the option to renew the lease between them, and a declaration that the defendants had repudiated the agreement to renew the lease constituted by the exercise of the option, and an order that the defendants pay the plaintiff damages.

2 The matter came before me on 15 and 16 June 2000, and I delivered my reasons for judgment on 27 July 2000. I decided against making the declaration sought by the plaintiff, and consequently I did not order or assess the amount of damages that the plaintiff had claimed. In their reasons for judgment delivered on 13 July 2001, the Court of Appeal overturned my decision with respect to the declarations sought by the plaintiff, and remitted the matter to this Division to assess the damages to be awarded to the plaintiff/appellant. Their Honours considered it inappropriate for the Court of Appeal to assess damages, given that there was contested evidence on mitigation of loss, and they have provided no specific guidance with respect to the assessment of damages. The matter is to be decided by me upon the evidence, in light of established principles.

3 The lease in question was for a period of three years commencing…

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.

Continue reading Young v Lamb (No 2)

Details

AGLC: Young v Lamb (No 2) [2001] NSWSC 1014
Case: [2001] NSWSC 1014
Decision Date: 9 November 2001

CaseChat Overview and Summary

The dispute between the parties involved was the assessment of damages following a breach of contract to renew a lease. The respondent, Lamb, had breached his contract to renew a lease with the applicant, Young, and the question before the court was what damages Young was entitled to claim for the loss of rent resulting from the breach. The matter was heard in the Supreme Court of New South Wales.

The central issue before the court was the extent to which damages for loss of rent could be reduced where the damage to the premises would have caused the rent to abate had the lease been renewed. The court also needed to decide whether the landlord, Lamb, had mitigated his loss by failing to find a tenant for the three-year duration of the renewed term. The court was required to balance the principles of mitigation of loss against the loss of rent caused by the tenant's breach of contract.

The court found that damages for loss of rent could be reduced by the amount corresponding to the abatement that would have occurred had the tenant performed the contract by renewing the lease. The court held that the landlord had failed to mitigate his loss by not finding a tenant for the duration of the renewed term. The court held that the landlord's failure to mitigate his loss was a relevant consideration in assessing the damages for the loss of rent. The court ordered that the damages for loss of rent be reduced by 50% of the abatement that would have occurred if the lease had been renewed.

The court's final order was that the damages for loss of rent be reduced by 50% of the abatement that would have occurred if the lease had been renewed. The court held that the landlord had failed to mitigate his loss by not finding a tenant for the duration of the renewed term, and that this was a relevant consideration in assessing the damages for loss of rent. The court held that the landlord's failure to mitigate his loss was a factor that needed to be taken into account when assessing the damages for loss of rent. The court's decision provides guidance for landlords and tenants in relation to the assessment of damages for breaches of lease renewal agreements.

Orders