Mattana Coiffure Pty Limited v Sotiropoulos (No2) [2004] NSWADT 80

Set aside by Appeal : Set aside by Appeal in part 6/10/2004 Sotiropoulos -v- Mattana Coiffure Pty Limited (No 2) (RLD) [2004] NSWADTAP 43

CITATION: Mattana Coiffure Pty Limited v Sotiropoulos (No2) [2004] NSWADT 80 DIVISION: Retail Leases Division APPLICANT PARTIES: Mattana Coiffure Pty Limited RESPONDENT Vlasios Vasilios SOTIROPOULOS FILE NUMBER: 035024 HEARING DATES: 6 April 2004 SUBMISSIONS CLOSED: 04/06/2004 DATE OF DECISION: 04/23/2004

BEFORE: Fox R - Judicial Member APPLICATION: Claim for payment of money - Claim for rectification of the lease - Costs MATTER FOR DECISION: Orders; costs LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: M Drake, barrister RESPONDENT G Burton, barrister ORDERS: Building works orders; 1.The Respondent use all reasonable endeavours to obtain approval for Development Application 8.2003.408.1, in its current form or as amended only so far as is necessary to satisfy the requirements of Mosman Council ("Development Application"), from Mosman Council at the earliest possible time.; 2.The Respondent, within 8 weeks of obtaining approval for the Development Application construct and rectify treatment room 2 (excluding joinery) in accordance with the plans and schedule of fittings provided by Michael Sandberg, SMS Architects and the four paint finishes specified in the applicant's schedule of finishes attached to these orders and marked "A" ("building works").; 3.The Respondent ensure that the premises are secure and locked and provided with adequate toilet facilities throughout the building works. ; 4.The Respondent, within nine weeks of obtaining approval for the Development Application provide the Applicant with certifications:; i) from a practising structural engineer with corporate membership of the Institute of Engineers Australia that the excavation works have either left the existing wall at the back of treatment room 2 in structurally sound condition, or that underpinning or similar works have been effected to render it structurally sound; and; ii) from an accredited certifier, qualified to make these assessments and accredited under section 109T of the Environmental Planning and Assessment Act 1979, that the building works have been completed in accordance with order 2 above, the Building Code of Australia and any development consents entitling those works to be carried out. ; Compensation orders; 5.The Respondent pay the Applicant $37,900 in compensation for the period from 5 September 2002 to 23 September 2003. ; 6.The Respondent pay the Applicant compensation in the sum of $1,803 a day for: ; i) three days lost trading on 24-26 September 2003 by closure of the salon during the installation of the temporary facilities, being $5409; and; ii) each additional day of trading lost from 6 April 2004 until the completion of the building works by closure of the salon, payable at the end of each week in which a day or more of trading is lost by cheque delivered to the leased premises during the trading hours of the applicant's business or as otherwise agreed between the parties.; 7.The Respondent pay the Applicant compensation in the sum of: $4,284 for the loss of the use of Treatment Room 2 from 24 September 2003 until 6 April 2004 calculated at the rate of $153 per week; and; i) $153 per week or part thereof for further loss of Treatment Room 2 from 6 April 2004 until the completion of the building works, payable at the end of each week by cheque delivered to the lease premises during trading hours of the applicant's business or as otherwise agreed between the parties.; 8.The Respondent pay the Applicant an agreed amount of $4,350 ($4,785 less GST) for the Applicant to replace the joinery (only) in Treatment Room 2.; 9.The Respondent pay the Applicant interest on the compensation payable under order 5 only at the rate of 6.57 per cent, being $2,292.; 10.The amounts referred to in orders 5-9 (excluding orders 6(b) and 7(b)) being the sum of $54,235, including interest, be paid within 28 days from the date of this order.; Costs order; 11.The Respondents pay one half of the Applicant's costs of preparation for trial up to the commencement of but not including the actual conduct of the hearing of 22 July and is to pay all of the Applicant's costs (including preparation) for the conduct of the matter on 23 and 24 July and all subsequent appearances in the matter including appearance of 6 April 2004, all on a party/party basis.; Liberty to apply; 12.Liberty to either party to apply on 7 days' notice.; Declaration; 13.The Lease granted by the Respondent to the Applicant comprised an exclusive right to occupy the ground floor built area as identified by the highlighter outlined area shown in the plan attached to this order, but noting that the plan does not accurately reflect the new laundry and new WC because that is still to be built. The lease further included a shared right to park a vehicle in Carney Lane and a shared right of access to the rear lane Council car park identified in the plan as existing garage as limited by clause 3.4 and 11.3.2 of the lease.