Zouk v Lyons Road Pty Ltd - [2005] NSWADT 143

CITATION: Zouk v Lyons Road Pty Ltd [2005] NSWADT 143
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Retail Leases Division

PARTIES: APPLICANT/CROSS APPLICANT
Emelie Zouk
RESPONDENT/CROSS APPLICANT
Lyons Road Pty Ltd

FILE NUMBER: 055029; 055054

HEARING DATES: 10 June 2005

SUBMISSIONS CLOSED: 06/10/2005

DATE OF DECISION:
06/28/2005

BEFORE: Donald BG - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for surrender of possession of premises

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: T Hall, barrister
S Philips, barrister

ORDERS: 1. Interim orders of 4 March 2005 and 23 March 2005 revoked; 2. The Respondent/Cross Applicant is not entitled to terminate the lease commenced 20 August 2004; 3. There is no continuing breach by the Respondent /Cross Applicant of its obligations in respect of asbestos contamination or water penetration into the premises; 4. As from the date of this decision the Applicant / Cross Respondent's rights and obligations under the Lease continue including the obligation to pay rent subject to the unexpired portion of the rent free period of 1 month; 5. Matter listed at 9.30 am on 8 July 2005 for directions and conclusion if no further matters are raised.

1 This is a dispute about asbestos contamination and water penetration in two shops on Lyons Road, Drummoyne, at the corner of Victoria Road. The Lessee leased the premises under a Registered Lease, (Ex A/A) commencing 20 August 2004 for three years plus a three-year option with a three-month rent free period basically to permit the Lessee to obtain development consent and fit-out the premises.

2 The Lease in cl 7.1 sets out the Lessor’s responsibility as to the condition of the property.

7.1.2 maintain the property in a structurally sound condition;…

3 On about 20 October 2004 in the course of fit-out works, exposed asbestos was discovered on the premises and the fit-out work immediately ceased. The parties then engaged in a protracted process of assessment and remedial work and then fell into an equally protracted dispute as to if and when the asbestos remediation has been successfully completed and who is liable for it.

4 The Lease provided in clause 27.2 for the Lessor to take action in relation to dampness and water penetration and the parties also remain in dispute as to whether that obligation has been satisfied.

5 There were a number of other issues in dispute between the parties including termite damage and lead paint contamination but those issues have been settled at least to the point that the Tribunal is not asked to rule on them.

6 Nor is the Tribunal asked to rule on the…

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: [2005] NSWADT 143
Decision Date: 06/28/2005

CaseChat Overview and Summary

Zouk, the applicant, sought relief from the Supreme Court of New South Wales against Lyons Road, the respondent, regarding a lease agreement. The dispute centred on the respondent's right to terminate the lease, as well as the respondent's claims of breaches by the applicant regarding asbestos contamination and water penetration into the premises. The applicant argued that the respondent had no grounds to terminate the lease and that there was no continuing breach by the applicant.

The court was required to determine whether the respondent had the right to terminate the lease and whether there was a continuing breach by the applicant. The court also had to consider whether the respondent's claims were valid and whether the interim orders made earlier should be revoked.

The court found that the respondent had no grounds to terminate the lease, and that there was no continuing breach by the applicant. The court held that the respondent's claims were unfounded and that the interim orders made earlier should be revoked. The court further held that the applicant's rights and obligations under the lease continued, including the obligation to pay rent subject to the unexpired portion of the rent free period of one month. The matter was listed for directions and conclusion if no further matters were raised.

Orders

Orders of the court

1. Interim orders of 4 March 2005 and 23 March 2005 revoked; 2. The Respondent/Cross Applicant is not entitled to terminate the lease commenced 20 August 2004; 3. There is no continuing breach by the Respondent /Cross Applicant of its obligations in respect of asbestos contamination or water penetration into the premises; 4. As from the date of this decision the Applicant / Cross Respondent's rights and obligations under the Lease continue including the obligation to pay rent subject to the unexpired portion of the rent free period of 1 month; 5. Matter listed at 9.30 am on 8 July 2005 for directions and conclusion if no further matters are raised.

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.

CITATION:	Zouk v Lyons Road Pty Ltd [2005] NSWADT 143 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT/CROSS APPLICANT Emelie Zouk RESPONDENT/CROSS APPLICANT Lyons Road Pty Ltd
FILE NUMBER:	055029; 055054
HEARING DATES:	10 June 2005
SUBMISSIONS CLOSED:	06/10/2005
DATE OF DECISION:	06/28/2005
BEFORE:	Donald BG - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for surrender of possession of premises
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	T Hall, barrister S Philips, barrister
ORDERS:	1. Interim orders of 4 March 2005 and 23 March 2005 revoked; 2. The Respondent/Cross Applicant is not entitled to terminate the lease commenced 20 August 2004; 3. There is no continuing breach by the Respondent /Cross Applicant of its obligations in respect of asbestos contamination or water penetration into the premises; 4. As from the date of this decision the Applicant / Cross Respondent's rights and obligations under the Lease continue including the obligation to pay rent subject to the unexpired portion of the rent free period of 1 month; 5. Matter listed at 9.30 am on 8 July 2005 for directions and conclusion if no further matters are raised.