Mattana Coiffure Pty Limited v Sotiropoulos [2003] NSWADT 210

CITATION: Mattana Coiffure Pty Limited v Sotiropoulos [2003] NSWADT 210 DIVISION: Retail Leases Division APPLICANT PARTIES: Mattana Coiffure Pty Limited RESPONDENT Vlasios Vasilios Sotiropoulos FILE NUMBER: 035024 HEARING DATES: 22/07/2003, 23-24/07/2003 SUBMISSIONS CLOSED: 07/24/2003 DATE OF DECISION: 09/09/2003

BEFORE: Fox R - Judicial Member APPLICATION: Claim for payment of money - Claim for rectification of the lease - Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: Mr Darke, counsel RESPONDENT Mr Burton, counsel ORDERS: Matter to be listed on 15 September 2003 at 10 am

REASONS FOR DECISION 1 The Applicant seeks orders for refurbishment of rented premises damaged as a result of the Respondent landlord's building activities on the site, and compensation for loss of past and future trading profits, from the commencement of the interference caused by the construction to the anticipated date of completion of the reinstatement. It also seeks an order for costs. 2 The premises are a street level hairdressing salon at 787 Military Road, Mosman, and indeed that is the way they are described in the Lease – "Folio Identifier, part only being ground floor premises 787 Military Road, Mosman". The Lease is in standard Law Society approved form dated 17 April 2000, for a term of 5 years, without option, at a rental of $88,400.00 per year (or $1,700.00 per week), subject to annual CPI Increases. The building appears in Edwardian times to have been a shop with residence at rear and above. The upper facade of the building is heritage listed, but the street level shop front, and the rest of the building is not. 3 The Applicant had commenced trade in 1996 some distance down the road and by the year 2000, those premises had grown too small, and the Applicant resolved to move into the current larger (and much more expensive) premises. 4 The Applicant's money claim was for damages for breach of the covenant for quiet enjoyment, and was not pursuant to the provisions which Section 34 of the Retail Leases Act 1994 ("the Act") imports into the Lease. 5 I was not given a copy of the mandatory Disclosure Statement, and consequently cannot refer to that to seek to ascertain what exactly was intended by the parties to be included in "ground floor premises". However, there was a one page document headed "Agreement to Lease" signed between the parties some time in March 2000. In it the premises are described as "ground floor lockup shop 787 Military Road, Mosman includes one car parking space and rear access". 6 Considering the definition found in Section 3 of the Act; retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing.