Peter A Simon Real Estate Pty. Ltd. v. Ghabash & Ors.; Chung & Anor. v. Ghabash [2004] NSWCA 467

New South Wales Court of Appeal

CITATION : Peter A Simon Real Estate Pty. Ltd. v. Ghabash & Ors.; Chung & Anor. v. Ghabash [2004] NSWCA 467 HEARING DATE(S) : 1 November 2004 JUDGMENT DATE : 17 December 2004

JUDGMENT OF : Mason P at 1; Hodgson JA at 2; McColl JA at 50 DECISION : In the PAS appeal (CA41167/03): 1. Appeal allowed. 2. Mr. Ghabash to pay PAS's costs of the appeal and to have a Suitors Fund certificate if otherwise entitled. 3. No order as to the costs of Mr. and Mr. Chung. 4. Judgment against PAS set aside, and in lieu thereof judgment for PAS in the proceedings; In the Chungs' appeal (CA41105/03): 1. Appeal allowed. 2. Mr. Ghabash to pay the Chungs' costs of the appeal, and to have a Suitors Fund certificate if otherwise entitled. 3. Judgment below set aside, and in lieu thereof judgment for Mr. Ghabash against the Chungs for $50,000.00 plus interest at Supreme Court rates from 30 December 1995, and the Chungs to pay Mr. Ghabash's costs of the proceedings against them.

CATCHWORDS : LANDLORD AND TENANT - Lease of commercial premises - Construction of lease - Term exempting lessor from liability for damage to tenant's property - Exception where lessor fails to act after written notice from the tenant - Damage to tenant's property by fire caused by lessor's negligence - Whether within term - Notes previously made by lessor's agent of tenant's complaints - Whether within exception - PRINCIPAL AND AGENT - Lease of commercial premises - Fire caused by defects in roof and electrical wiring - Prior complaints by tenant to lessor's managing agent - Whether agent liable in negligence for failing to attend to repairs on own initiative - Whether agent liable in negligence for failing to pass on complaints to lessor - In latter case, whether causation fo loss proved - DAMAGES - Lack of evidence due to destruction of records by fire and also due to tenant's unbusiness-like practices - Proper approach to assessment of damages CASES CITED : Darlington Futures Ltd. v. Delco Australia Pty. Ltd. (1986) 161 CLR 500 Peter A. Simon Real Estate Pty. Ltd. - appellant (41167/03) PARTIES : Michael Ghabash - 1st respondent Michael Chung and Diana Chung - 2nd & 3rd respondents FILE NUMBER(S) : CA 41167/03; 41105/03 Mr. S. Donaldson SC with Mr. R. Sheldon for PAS Real Estate COUNSEL : Mr. J. Graves SC with Mr. M. Hutchings for the Chungs Mr. D. Kennedy SC with Mr. C. Sandrasegara for Mr. Ghabash Murray Stewart & Fogarty, Sydney for PAS Real Estate SOLICITORS : McMahons National Lawyers, Sydney for the Chungs Morgan Ardino & Co., Petersham for Mr. Ghabash