Eather v Nguyen [2011] NSWADT 80

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Eather v Nguyen [2011] NSWADT 80 Hearing dates: 25 June and 2 August 2010 Submissions closed 13 September 2010 Decision date: 19 April 2011 Before: S Higgins Deputy President Decision: 1.The respondent to pay the applicant an amount of $28,186.27. 2.The respondent to pay the applicant's cost in the amount of $2,400.00 (inclusive of GST). Otherwise no further order as to costs. Catchwords: Damages - lessor's breach of lease - failure to maintain in a state of good condition and serviceable repair the floor of the property and failure to fix structural defects to the floor - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Food Act 2003 Retail Leases Act 1994 Cases Cited: Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 64 Category: Principal judgment Parties: Robert David Eather (Applicant) Uyen Vu Ngoc Nguyen (Respondent) Representation: Solicitors: Shaddicks Lawyers (Applicant) Aquinas & More Lawyers (Respondent)until 18 August 2010) N Nguyen (Respondent in person) from 19 August 2010 File Number(s): 105039

REasons for decision

Introduction 1The applicant, Mr Eather, and his wife are the owners of a bakery business operated from premises owned by the respondent, Ms Nguyen. Mr Eather and his wife purchased the business in September 2007. When purchasing the business Ms Nguyen assigned the lease of the premises from which the business had been operating since 2004 (the 2004 lease). 2The initial parties to the 2004 lease were Rightscene Pty Limited (the lessor) and Nugenuly Pty Ltd (the lessee). It was a lease for 5 years, with an option to renew for a further 5-year period. The commencement date was 12 October 2004 and it expired on 11 October 2009. 3In October 2005, Ms Nguyen became the owner of the premises. 4During the latter part of 2009, a dispute arose between Mr Eather and Ms Nguyen over the condition of the floor in the premises. Mr Eather asserted that he had complained about the condition of the floor for some time as it was having a direct effect on his ability to keep the premises clean and hence his ongoing inability to comply with the food regulations. After a number of inspections of the premises, on 2 October 2009, the Hawkesbury City Council (the Council) issued Mr Eather with an Improvement Notice, followed by a Prohibition Order, on 13 November 2009. The Prohibition Order prohibited Mr Eather from handling food on premises that were intended for sale, or using any of the equipment on the premises in connection with food intended for sale. 5As a result of the Prohibition Order, Mr Eather ceased trading and did not recommence trading until 4 March 2010 after Ms Nguyen had replaced the floor of the premises and an agreement had been reached on a new lease. A new lease was necessary as Mr Eather had failed to give the requisite written notice of his intention to exercise his option to renew the 2004 lease. 6On 15 March 2010, Mr Eather made an application to the Tribunal, seeking orders, including an order that Ms Nguyen pay him an amount by way of damages for alleged breaches, by Ms Nguyen, of the 2004 lease and specified provisions of the Retail Leases Act 1994. Mr Eather's claim was retail tenancy claim under section 71 of that Act and an unconscionable conduct claim under section 71A of that Act. 7Prior to the matter being listed for hearing, Mr Eather withdrew his unconscionable conduct claim. 8The matter was listed for hearing, before me, on 25 June 2010. At the commencement of the hearing, the solicitor for Ms Nguyen argued that Mr Eather's application was misconceived and should be dismissed. Her argument was based on the terms of clause 19 of the new lease. I indicated to Ms Nguyen's solicitor that the matter would proceed and that the clause 19 argument could be raised in submissions after all the evidence was heard. I was then informed that Ms Nguyen was overseas and not available to give evidence and be cross-examined that day. As this had not been raised at the time the matter was set down for hearing and Mr Eather's solicitor had not been informed of her unavailability that day, I directed that the hearing of the matter proceeded with Mr Eather being available to give evidence and to be cross-examined by Ms Nguyen's solicitor. At the conclusion of hearing of Mr Eather's evidence, the hearing of the remaining evidence was adjourned to 2 August 2010. 9During the course of the hearing on 2 August 2010, Ms Nguyen's solicitor advised the Tribunal that Ms Nguyen's argument in regard to clause 19 was no longer pressed. 10In regard to Mr Eather's claim for loss and damage as a result of not trading from 14 November 2009 to March 2010, Ms Nguyen's solicitor conceded that during this period, Mr Eather continued to occupy the premises under the terms of the 2004 lease. 11Ms Nguyen did not appear to dispute that the effect of the Council's Prohibition Order was that Mr Eather could not trade until the matters referred to in that Order were attended to. 12On this basis the matters in issue are as follows: (a) was the condition of the flooring the reason Mr Eather ceased trading? (b) who was responsible for the condition of the flooring - Mr Eather through his use/misuse of the floor, or Ms Nguyen in her failure to maintain or repair the flooring? (c) in the event the Tribunal finds that the condition of the flooring was the reason Mr Eather ceased trading and Ms Nguyen is found to have been responsible for the condition of the flooring, the loss (if any) suffered by Mr Eather as a result of being unable to trade from 13 November 2009 to 3 March 2010? (d) is Mr Eather entitled to an abatement of rent from 14 November to 11 December 2009? and (e) Costs.