Zouk v Lyons Road Pty Ltd (No 2) - [2010] NSWADT 292

CITATION: Zouk v Lyons Road Pty Ltd (No 2) [2010] NSWADT 292

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Emelie Zouk
RESPONDENT
Lyons Road Pty Limited

FILE NUMBER: 055029

HEARING DATES: 10, 11, 12 and 13 May 2010

SUBMISSIONS CLOSED: 13 May 2010

DATE OF DECISION:
7 December 2010

BEFORE: Higgins S - Deputy President

CATCHWORDS: Damages

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Zouk v Lyons Road Pty Ltd [2005] NSWADT 143

REPRESENTATION:
APPLICANT
G B Evans, barrister
RESPONDENT
G Sirtes SC, barrister

ORDERS: 1.On or before 15 December 2010, the parties file and serve draft short minutes of order in accordance with the Tribunal’s findings as to loss and damage as set out in these reasons for decision.
2.The matter is listed for directions on 21 December 2010 at 10am for the purpose of hearing submissions on costs (if any).

REASONS FOR DECISION

Introduction

1 On 2 March 2005 the applicant, Ms Zouk, commenced proceedings in the Tribunal seeking a declaration of rights, obligations and liabilities in regard to a lease she had entered on 20 August 2004 for premises known as shops 13 and 14 at 38-50 Lyons Road Drummoyne (the Lyons Road shop). The lessor of the lease was the respondent, Lyons Road Pty Limited (Lyons Road (the lessor)). The lease was for a period of 3 years plus a 3 year option with a 3 month rent free period so as to permit Ms Zouk to obtain development consent and also to fit-out the premises. The lease provided that the permitted use of the premises was retail fashion and accessories.

2 Clause 7.1 of the lease set out the responsibility of Lyons Road (the lessor) in regard to maintaining in a good condition and serviceable repairs the roof, the ceiling, the external walls and the floors of the premises. Clause 27.2 of the lease also required Lyons Road to take action in relation to dampness and water penetration to the premises.

3 A dispute arose between Ms Zouk and Lyons Road (the lessor) when, during the installation of the fit-out, the shop was found to be contaminated with asbestos and contain dampness due to water penetrations. The initial position adopted by Lyons Road (the lessor) was that these problems were not its responsibility. Ms Zouk, on the other hand, refused to pay rent until the problems had been fixed. In January and February 2005 Lyons Road (the lessor) wrote to Ms Zouk stating that it would terminate the lease and recover possession of the shop if Ms Zouk’s failure to pay the rent continued. It was these letters that prompted Ms Zouk to lodge her application with the Tribunal.

4 That dispute was determined, in part, by Judicial Member Donald on 28 June 2005: see Zouk v Lyons Road Pty Ltd [2005] NSWADT 143 (the Tribunal’s earlier decision).

In that decision, Judicial Member Donald determined that Lyons Road (the lessor) was not entitled to terminate the lease. He also determined that, as at 1…

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: [2010] NSWADT 292
Decision Date: 7 December 2010

CaseChat Overview and Summary

Zouk v Lyons Road Pty Ltd (No 2) involved a dispute between the plaintiff, Zouk, and the defendant, Lyons Road Pty Ltd, regarding damages arising from a breach of contract. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The plaintiff alleged that the defendant had breached a contract for the construction of a commercial building, resulting in significant financial loss.

The legal issues before the Tribunal included whether the defendant had indeed breached the contract and, if so, the quantum of damages owed to the plaintiff. The plaintiff argued that the defendant had failed to complete the building within the agreed timeframe and had not met certain quality standards, leading to delays and additional costs. The defendant contended that any delays were due to unforeseeable circumstances and that the plaintiff had not adequately mitigated his losses.

In its decision, the Tribunal found that the defendant had breached the contract, particularly in relation to the failure to meet the completion date. However, the Tribunal determined that the plaintiff had not provided sufficient evidence to substantiate the full extent of his claimed losses. The Tribunal ordered that the parties submit draft short minutes of order by a specified date, reflecting the Tribunal’s findings on the loss and damage. The matter was subsequently listed for directions to address any submissions on costs.

Orders

Orders of the court

1.On or before 15 December 2010, the parties file and serve draft short minutes of order in accordance with the Tribunal’s findings as to loss and damage as set out in these reasons for decision.

2.The matter is listed for directions on 21 December 2010 at 10am for the purpose of hearing submissions on costs (if any).

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 (No 2) [2010] NSWADT 292
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Emelie Zouk RESPONDENT Lyons Road Pty Limited
FILE NUMBER:	055029
HEARING DATES:	10, 11, 12 and 13 May 2010
SUBMISSIONS CLOSED:	13 May 2010
DATE OF DECISION:	7 December 2010
BEFORE:	Higgins S - Deputy President
CATCHWORDS:	Damages
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Zouk v Lyons Road Pty Ltd [2005] NSWADT 143
REPRESENTATION:	APPLICANT G B Evans, barrister RESPONDENT G Sirtes SC, barrister
ORDERS:	1.On or before 15 December 2010, the parties file and serve draft short minutes of order in accordance with the Tribunal’s findings as to loss and damage as set out in these reasons for decision. 2.The matter is listed for directions on 21 December 2010 at 10am for the purpose of hearing submissions on costs (if any).