Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Auburn Shopping Village Pty Ltd v Azzi [2013] NSWADT 33 Hearing dates: 25 & 26 October 2012 Decision date: 07 February 2013 Jurisdiction: Retail Leases Division Before: Deputy President Patten Decision: 1. That Respondents pay to Applicant the sum of $61092 inclusive of interest 2. Subject to paragraph 50 no order as to costs. Catchwords: Retail lease - repudiation-damages- ambit of premises leased- compliance rent unenforceable Legislation Cited: Retail Leases Act 1994 Cases Cited: Andrews and Ors v Australian and New Zealand Banking Group Ltd Shevill v The Builders Licensing Board [1981-1982] 149 CLR 620 Turner v York Motors (1951) 85 CLR 55 Category: Principal judgment Parties: Auburn Shopping Village (Applicant) Simon Azzi and Samira Azzi (Respondents) Representation: Milaad S Raad & Associates (Applicant) La Rosa Izzo & Co (Respondents) File Number(s): 115141 reason for decision 1By its Further Amended Application for Original Decision the Applicant seeks these orders: 1. That the respondents pay to the applicant the sum of $262,135.81 on account of damages for breach of lease, including a claim for $14,000 plus GST made as a quantum valebat, restitution and/or unjust enrichment. 2. That the respondents pay interest on all sums or amounts found to be due to the applicant at the rate of 9% per annum. 3. That the respondents pay the costs of the applicant as agreed, or in the absence of agreement, as assessed. 2Most of the underling facts are not in dispute. They concern a retail lease within the meaning of the Retail Leases Act (the Act) over premises being shops 26 & 27 Auburn Shopping Village (the Premises). 3The Applicant as owner of the Shopping Village of which the premises form part leased the premises described as "shops 26 & 27 Auburn Shopping Village " by registered lease AD91781U to Gunler Pty Ltd for a term of 5 years commencing 1 October 2006 and terminating 30 September 2011 (the Lease). The lease permitted use of the premises for "Pizza and Lebanese Fast Food Restaurant - eat in or take away" and incorporated the provisions set out in registered memorandum 3219885. 4The lease provided for a base rent payable by equal monthly instalments, for an annual review of the base rent, for the payment of a "Promotion Rent" and for the payment of a "Compliance Rent". One of the issues which arise for determination in this case concerns the enforceability of the provisions of the lease relating to "Compliance Rent" and it is convenient to deal with that issue first. 5Section F of the lease contains these provisions: F. COMPLIANCE RENT Payment of Compliance Rent: The Tenant covenants with the Landlord to pay to the Landlord, without demand and without any deduction or right of set-off whatever as an additional rent to the base Rent and other rent payable under this Lease, the Compliance Rent reserved by this Lease by equal Monthly instalments (and proportionally for any part of the Month) in advance on the first day of each Month. The first instalment shall be paid on the Commencement Date, All such instalments shall be paid to such place and by such means as the Landlord may from time to time direct. F.2 Increase: The Compliance Rent shall at the expiration of each Lease Year increase in the same proportion as the Base Rent increases (if any). F.3 Waiver: Despite any other matter or thing whatsoever: (a) If the Tenant shall, on or before the day on which any monthly instalment of the Aggregate Rent and the rent payable pursuant to clause E of this schedule is payable in accordance with the provisions of this Lease (the "Total Rent"). Pay to the Lessor the monthly instalment of the Total Rent payable in accordance with the provisions of this Lease,; and (b) The Tenant is not in breach of any of the provisions of this Lease; Then the landlord will waive the requirement for the Tenant to pay the Compliance Rent which would otherwise be payable but for this provision. 6It was argued on behalf of the Respondents that the provisions of the lease regarding payment of a Compliance Rent constituted an unenforceable penalty. 7The High Court in Andrews and Ors v Australian and New Zealand Banking Group Ltd (6 September 2012) described the penalty doctrine in these terms (references to cases omitted): 9 Mason and Deane JJ observed in Legione v Hateley that, as the term suggests, a penalty is in nature of a punishment for non-observance of a contractual stipulation and consists, upon breach, of the imposition of an additional or different liability. 10 In general terms, a stipulation prima facie imposes a penalty on a party ("the first party") if, as a matter of substance, it is collateral (or accessory) to a primary stipulation in favour of a second party and this collateral stipulation, upon the failure of the primary stipulation, imposes upon the first party an additional detriment, the penalty, to the benefit of the second party. In that sense, the collateral or accessory stipulation is described as being in the nature of a security for and in terrorem of the satisfaction of the primary stipulation. If compensation can be made to the second party for the prejudice suffered by failure of the primary stipulation, the collateral stipulation and the penalty are enforced only to the extent of that compensation. The first party is relieved to that degree from liability to satisfy the collateral stipulation. 8Mr Fernon, Counsel for the Applicant submitted that the Compliance Rent does not constitute a penalty as it is payable as of right and not as a consequence of breach of the lease. It is simply as Mr Fernon submitted, an obligation which will be waived if rent is paid on time and there is no other breach. 9However the doctrine is one of equity not of law (Andrews at para 31) and the substance rather than the form of the obligation must be considered. In the case of the Compliance Rent its very name suggests that in substance it is designed to ensure compliance with the terms and conditions of the lease. The amount of the Compliance Rent of course bears no relationship to any loss which might be suffered by the Applicant upon a breach of one or more of the terms of the lease. If Section F were enforceable according to its terms the waiver provided for would be negated no matter how minor the breach. Indeed, as the clause is drafted, failure by the lessee to pay the Compliance Rent itself on the due date for payment of the rent would constitute a breach entitling the lessor to decline to waive the obligation. Curiously the obligation to waive payment of the Compliance Rent could only arise retrospectively after the Compliance Rent itself had been paid. Presumably the lessee would then entitle to a refund. There is no reason to think that adequate compensation for any breach of the lease would not otherwise be available. In my opinion Section F of the lease is unenforceable as in substance constituting a penalty and I reject that part of the Applicants claim which seeks payment of Compliance Rent. 10Certain provisions of memorandum 3219885 have relevance to other issues in the case including: 11. DEFAULT, TERMINATION 11.1 Default: if: (a) Rent In arrears: the Rent or any part of it is in arrears and unpaid for fourteen (14) days next after any of the due dates for payment (whether demanded or not); or (b) failure to pay other moneys: any moneys (other than Rent) payable by the Tenant to the Landlord on demand are not paid within fourteen (14) days of the Landlord demanding payment, or if any other moneys payable by the Tenant to the Landlord are not paid by the due date for payment; or (c) ............ (d) ............ (e) ............ (f ) ............ then and in any of such cases the Tenant shall be deemed to have made default. The Landlord may elect to treat any such default as a repudiation of this Lease by the Tenant. 11.2 Forfeiture of Lease: if the Tenant has made default as specified in Clause 11.1 the Landlord may, without prejudice to any other Claim which the Landlord has or may have or could otherwise have against the Tenant or any other Person in respect of such default, at any time: (a) determination by re-entry: subject to any prior demand or Notice as is required by Law, re-enter into and take possession of the Premises or any part of them (by force if necessary) and eject the Tenant and all other Persons from them, and thereupon this Lease shall be absolutely determined; (b) determination by notice: by Notice to the Tenant determine this Lease, and from the date of giving such Notice this lease shall be absolutely determined; and/or (c) ....... 11.4 Waiver: (a) No waiver: The Landlord's failure to take advantage of any default or breach of covenant on the part of the Tenant shall not be or be construed as a waiver of it, nor shall any custom or practice which may grow up between any of the Parties in the course of administering this Lease be construed to waive or to lessen the right of the Landlord to insist upon the timely performance or observance by the Tenant of any covenant or condition of this Lease or to exercise any rights given to the Landlord in respect of any such default. (b) Waiver of individual default: A waiver by the Landlord of a particular breach or default shall not be deemed to be a waiver of the same or any other subsequent breach or default. (c) Acceptance or demand for rent not waiver: The demand by the Landlord for, or subsequent acceptance by or on behalf of the Landlord of, Rent or any other moneys payable under this Lease shall not constitute a waiver of any earlier breach by the Tenant of any covenant or condition of this Lease, other than the failure of the Tenant to make the particular payment or payments of Rent or other moneys so accepted, regardless of the Landlord's knowledge of any earlier breach at the time of acceptance of such Rent or other moneys. 11.7 Damages for breach: The Tenant agrees that: (a) repudiation: if the Tenant's conduct (whether by act or omission) constitutes a repudiation of this Lease (or of the Tenant's obligations under this Lease), or constitutes a breach of any lease covenants, or the Landlord elects to treat any default as a repudiation pursuant to Clause 11.1, the Tenant shall compensate the Landlord for all Costs suffered by reason of or arising from any such repudiation or breach; (b) Costs of repudiation the Landlord shall be entitled to recover Costs against the Tenant in respect of repudiation or breach of covenant for the damage suffered by the Landlord for the Term; (c) Landlord's entitlement to damages: the Landlord's entitlement to recover damages from the Tenant or any other Person shall not be limited for any reason or affected by any of the following: (i) abandonment: if the Tenant abandons or vacates the Premises; (ii) termination: if the Landlord elects to re-enter the Premises or terminate this Lease; (iii) repudiation: if the Landlord accepts the Tenant's repudiation; or (iv) conduct: if the Parties' conduct (or that of any of their servants or agents) constitutes or may constitute a surrender by operation of law. 11.9 Landlord to mitigate damages: if the Tenant vacates the Premises, whether with or without the Landlord's consent, the Landlord shall take responsible steps to mitigate its loss and to endeavour to re-lease the Premises at a reasonable rent and on reasonable terms. The Landlord's conduct taken in pursuance of this duty to mitigate damages shall not of itself constitute acceptance of the Tenant's breach or repudiation or a surrender by operation of law. 11.10 Calculation of damages: Should the Landlord terminate this Lease following any breach of a fundamental term or otherwise then, without prejudice to any other right or remedy of the Landlord, the Landlord shall be entitled to recover from the Tenant the difference between the aggregate of Rent and other moneys payable by the Tenant under this Lease for the unexpired residue of the Term less any amount the Landlord is able to obtain, or could in the Landlord's opinion reasonably be expected to obtain, by observing Clause 11.9. 12.2 Removal of Tenant's Fittings: The Tenant shall, at or before the Termination Date or sooner determination of this Lease, remove from the Premises all the Tenant's Fittings. 12.4 Failure by Tenant to remove Tenant's Fittings: If the Tenant fails to remove the Tenant's Fittings as required by Clause 12.2, or in the event of re-entry pursuant to Clause 11.2, the Landlord may at its option: (a) Landlord's right to remove: cause any such Tenant's Fittings to be removed and stored in such manner as the Landlord in its absolute discretion deems fit at the risk and at the Cost of Tenant; or (b) deemed abandonment: treat the Tenant's Fittings as if the Tenant had abandoned its interest in them and they had become the property of the Landlord, and deal with them in such manner as the Landlord thinks fit without being liable in any way to account to the Tenant for them. 12.6 Earlier breaches: the termination or determination of this Lease shall not prejudice or affect any rights or remedies of the Landlord against the Tenant in respect of any earlier breach by the Tenant of any covenants and conditions on the part of the Tenant. 11Gunler Pty Ltd by an undated instrument registered AE341359V transferred its estate and interest in the lease to the Respondents. 12In evidence before me is an undated document called Deed of Assignment of Lease between the applicant, Gunler Pty Ltd, Suat Gunler and Fadime Gunler and the Respondents. 13As all the obligations imposed upon the Respondents by the Deed were expressed to commence from the date it bore there may have been some significance to be derived from the fact that although there was space for a date in two places both of them were left blank. However no argument was addressed to me on this point and the parties may have accepted that the Respondents were estopped from disputing any liability subsequent to the one date which appears namely the stamp duty imprint on the transfer of lease which bears the date 9 September 2008. 14Mr Neil Kerz the solicitor for the Applicant in his affidavit sworn 18 June 2012 said that he took the date of the deed to be 26 September 2008 when he distributed to the parties "executed but undated counterparts of the deed". 15On 28 April 2010 Mr Kerz received a letter from Solicitors acting for the Respondents (omitting formal parts): Our clients have been unable to find a purchaser to purchase their business on the onerous and unreasonable conditions demanded by your client. Accordingly they have ceased trading at the premises but will continue to pay their normal rent under the Lease until your client finds a new tenant. Please ask you client to advertise for a new tenant for the premises in accordance with its obligation to mitigate its loss. 16There is no evidence as to the Applicant's immediate response to the letter but it may be inferred that the Respondents sought to find an assignee of the lease themselves as there is in evidence a letter from the Applicant's then agent to the Respondents dated 18 May 2010. We refer to our recent discussion regarding your premises and note that you may have someone interested in taking over your lease. At this stage we have had a telephone discussion with a person by the name of Tony but no other detail has been provided. You will appreciate that without further information we have no way of assessing a prospective new tenant. In discussions with Tony he did indicate that to consider taking over the lease he would require a longer term lease but as advised to you on 2 or 3 occasions we have no instructions regarding any further term so at this stage the proposed new tenant would need to consider the lease based on its current term only. To proceed forward we will need the following:- 1 Confirmation from yourself of the proposed transfer of lease. 2 A statement of Assets and Liabilities from the new tenant 3 Details of previous history from the proposed tenant of operating a business similar to the approved usage of your shop 4 A business plan from the new tenant 5 Details of previous shops leased by the proposed new tenant and contact details for the Landlord/managing agent In due course we will need to meet with the proposed new tenant. On receipt of the above we will again refer the matter to the Landlord for instructions. Please do not hesitate to give us a call should you have any queries. 17Mr Robert Belford, a new managing agent, for the shopping village was appointed by the Applicant from about 12 August 2010. 18Mr Belford according to his affidavit of 15 June 2012 commenced to seek a replacement tenant for the premises. Eventually he concluded negotiations with Ms Zeyna Zabinoglu at about the end of November 2010 and a lease to her was granted by the Applicant for a term of 5 years from 1 February 2011. The grant of this lease for a term of 5 years indicated that the Applicant had by then withdrawn its earlier stipulation that it would not grant a further lease beyond the term of the current lease. 19To be fair to the Applicant it should be noted that it had previously made clear to the Respondents that its refusal to grant a new lease beyond the current term arose out of its plans to redevelop the site. Although Ms Zabinoglu was able to negotiate a 5 year term the lease reserved the conditional right of the lessor to terminate on 6 months notice if it proposed to demolish the centre. 20By the end of November the Respondents had despite the assurance given in the letter of 22 April 2010 become somewhat irregular with the payment of rent. This resulted in the Applicant writing to them on 17 December 2010. We record that rent for the month of December due in respect of the above referred premises on 1 December 2010 remains unpaid. Pursuant to clause 11.1 of Memorandum 3219885 (the memorandum) incorporated in your lease your failure to pay rent within 14 days of the same having fallen due for payment constitutes default under your lease, entitling us to treat such default as a repudiation of the lease on your part. We therefore give you notice that we have accepted your repudiation and have elected to terminate your lease. Pursuant to clause 11.2 of the memorandum we have re-entered and taken possession of the leased premises. Take notice that you are permanently excluded from the premises both personally and by your servants and agents. 21The assertion of rent default made in the letter reproduced above was not disputed and having regard to the terms of the lease in my opinion there was an unlawful repudiation by the Respondents which the Applicant was entitled to accept. It follows that the Applicant is entitled to sue for loss of its bargain (Shevill v The Builders Licensing Board [1981-1982] 149 CLR 620). 22Damages are claimed under several heads. As to the component of alleged arrears of rent due up to the termination of the lease this was almost wholly overcome by a payment of $8000 accepted on 23 December 2010. The balance outstanding was then only $5.89 the rent at that time being $91373.52 p.a. 23However damages were claimed for the period from 1 January 2011 to the end of the term of the lease on 30 September 2011. The lost rent which would have been payable if the lease had not been repudiated was $75,383.19 including GST against which the Applicant brings to account the amount received from Ms Zabinoglu viz $36,307.86 including GST.. It follows that in respect of this part of its claim the Applicant is prima facie entitled to $39,075.33. 24Although it was asserted that damages should be diminished because of the alleged failure of the Applicant to minimise its loss I do not think this was established bearing in mind that the Respondents, who bear the onus of proving it, were themselves in breach of the lease and had the same opportunity as the Applicant of finding a new lessee. In my opinion the Applicant had no duty to agree to the terms of a fresh lease contrary to what it perceived as its best interests. In that circumstance given the limited period the lease had to run it is easy to accept the Applicant 's assertion that finding a new lessee was no simple task and was likely to involve concessions such as a reduced rent and a rent free period which on their face advantage the new lessee and correspondingly now operate to disadvantage the Respondents. I find that the Applicant acted reasonably and consistently with its obligations under the lease in the terms it negotiated with Ms Zabinoglu. 25The next head of damages claimed by the Applicant is the letting fee paid to an agent in respect of the new lease. This was quantified at $13,860 and in my opinion should be allowed. It plainly arises directly from the Respondents' repudiation. 26I turn now to a discrete aspect of the Applicants claim which relates to the area covered by the lease. It is alleged by the Applicant that the Respondents while they were in occupation of the premises also occupied an area owned by the Applicant outside the premises and should compensate the Applicant for that occupation. 27The factual basis for the claim may be derived from the following paragraphs of Mr Kerz's affidavit. 1. I am a solicitor employed in the office of Milad S Raad and Associates, solicitors. 2. I commenced my employment with Milad S Raad and Associates in February 1997. At that time the offices of the firm were located in Queen Street Auburn in the edge of the general Auburn Shopping Centre. 3. From the time I first started to work in Auburn I became personally very familiar with the Auburn Shopping Village, and with shops 26 & 27 in particular, as I usually purchased my lunch from shops 26 & 27, as frequently, I estimate, as 9 days out of 10. 4. From the time of my earliest recollection 1997 there was no external seating area for shops 26 & 27. 5. During the summer of 2002/2003 an external seating area appeared on the forecourt outside the shopping centre, and outside shops 26 and 27. 6. The introduction of the external seating area was noteworthy to me for the personal inconvenience it caused me as it obstructed my usual access to shops 26 & 27 through a side door to the centre, forcing me to enter through the main doors to the shopping centre and to negotiate the numerous shopping trolleys and prams passing through the front doors which were not a problem at the side door. 28The Applicant claims that it is entitled to payment of an occupation fee in respect of the external seating area referred to in Mr Kerz's affidavit for the period up to the expiration of the lease on the basis that the area is not encompassed by the reference to "shops 26 & 27 Auburn Shopping Village" in the lease. 29Mr Kerz's affidavit seems to make it clear that the external seating area was used or occupied by the proprietors of the business conducted in Shops 26 and 27 from the summer of 2002 /03 that is nearly 6 years before the Respondents became assignees of the lease and well over 3 years before the lease itself was granted. 30The position of the Respondents was that they believed the external seating area was encompassed by the description in the lease. Their evidence was that they received no notification to the contrary until after they executed the deed of assignment and I accept. Their first intimation of the Applicant's position so they asserted (and I accept) was receipt at the end of November 2008 of a letter from the Applicant's solicitor to their solicitors dated 26 September 2008 the last paragraph of which stated. "We also confirm our advice that the outdoor seating/eating area at the entry of the centre and the storeroom in the loading dock area are not part of the lease. Our client is presently having those areas measured. If your client wishes to continue to occupy those areas he is invited to submit his rental offer." 31It was submitted on behalf of the Applicant that the principle of quantum valebat entitles the Applicant to a reasonable amount for occupation of the outdoor seating area. 32Counsel referred to Turner v York Motors (1951) 85 CLR 55 and particularly the observations of Dixon J at 65: "If an intending lessor lets the intending lessee into occupation of the premises in anticipation of an agreement for a lease or of a lease, simply so that he may temporarily occupy while they proceed to negotiate concerning the conditions upon which the intending tenant shall hold, it is of course true that in the meantime the intending lessee holds as a tenant at will only. It is not inconsistent with the intending lessee's continuing so to hold that he pays the landowner some compensation for the use of the land and indeed if it is not intended that this occupation of the land shall be gratuitous the owner may recover from him upon a quantum valebat for use and occupation." 33However this is a very different case from York Motors. Here the Applicant granted the lease at a time when according to Mr Kerz the external seating area had been used or occupied by the lessees of Shops 26 & 27 for some years. It is likely I think that when the lease was granted in October 2006 both lessor and lessee contemplated that included in the description "shops 26 & 27 Auburn Shopping Village" was the area immediately adjacent to the shops then being actually used or occupied for the purposes of the business conducted in them. It is I think not without significance that the lease to Ms Zabinoglou also described the premises leased as "shops 26 & 27 Auburn Shopping Village" although the Disclosure Statement given to her pursuant to the Act indicated "lettable area: 80sqm including outdoor enclosure". 34I would hold that the external area was demised by the lease on its proper construction but if I be wrong in that view I would hold that the Applicant is estopped from alleging to the contrary. In my opinion when the deed of assignment was executed by the Applicant and the Respondents there was an assumed state of affairs common to the Applicant, Gunler Pty Ltd and the Respondents that the lease included the outdoor seating area a state of affairs which according to Mr Kerz had existed since the summer of 2002/2003. In my opinion by executing the deed the Applicant estopped itself from thereafter alleging against the Respondents that a different state of affairs existed namely one where the outdoor seating area was not included in the lease. I reject the Applicant's claim in respect of the outdoor seating area. 35The remaining issue in the case concerns the Applicant's claim that sometime after the lease was terminated the Respondents broke into the premises and stole property which by virtue of the terms of the lease had become vested in the Applicant. 36The principal evidentiary basis for this claim is contained in Mr Belfield's affidavit sworn 22 October 2012: It is my clear recollection that two or three days after service of the notice of termination of lease by the landlord I received a telephone call from Simon Azzi. He was extremely angry and threatening. He said to me words to the following effect: "I am not going to let you keep all of my fittings. I am coming to get my stuff." I said: Your lease has been terminated, and the locks changed. You are not allowed on the premises. You need to consult your solicitor in relation to your position. 37However in an earlier affidavit sworn 15 June 2012 Mr Belfield had deposed : By late November 2010 Ms Zabinoglu was able to proceed with a lease when the sale of her existing business was completed, and she approved the terms of a new lease. She delivered duly executed lease documents on 17 December 2010 and after being informed by the landlord that it had taken the action necessary to terminate the existing lease to Azzi that day I delivered possession of the premises to Ms Zabinoglu on that day. On 17 December 2010 1 also supervised the changing of the locks to the tenancy. At that time the premises were still fully fitted out with the furniture and fittings of the previous tenants. When I returned to the premises on 7 January 2011 after the Christmas break I found that much of the furniture and many of the fittings which formerly belonged to the previous tenants had been removed and that the landlords fixtures and fittings had been substantially damaged in the course of that removal. 38In his affidavit sworn 9 August 2012 Mr Simon Azzi deposed I remember when the landlord changed the locks because Samira told me and it was just before Christmas in 2010. I did not go to the shop after that and I did not try to enter the premises. I have no knowledge of any equipment being removed, other than that Samira told me before the locks were changed that she had one of the exhaust fans that we had installed removed from the premises Every year I go on holidays from Christmas Eve to early January when Samira and I take a holiday with our children. We stay at the Lake Shore apartments on Little Street at Foster. 39Ms Samira Azzi in her affidavit sworn 9 August 2012 said that after the locks were changed on 17 December 2011 she did not enter or seek to enter the premises: she added "I did not know that there had been a break in at the premises and was never contacted by the police about any break in. 40Mr Belfield and Mr and Ms Azzi were cross examined upon their affidavits. All three appeared to me to be honest witnesses doing their best to assist the Tribunal. 41Mr Belfield was cross examined as to whether the was mistaken in his evidence that Mr Azzi had telephoned him and threatened to break into the premises. 42It was suggested that the call was made by a man called Omar, said to be related to Mr Azzi and to have had a financial interest in the business. As a result of the cross examination I was left in doubt as to whether Mr Belfield might have been mistaken as to the person who telephoned him. There was no evidence that he had any particular familiarity with Mr Azzi's voice. 43Mr Belfield said the matter was reported to police but he could not say whether police attended the premises or made any investigation. 44No evidence in this regard was put before me. 45On the other hand both Mr and Ms Azzi maintained in the witness box their denial that they entered the premises at any time after 17 December 2010. 46The allegation that the Respondents broke into the premises and stole property of the Applicant after the locks were changed on 17 December 2010 is a serious allegation of criminal conduct and must be approached accordingly. In light of their denials on oath and the paucity of the evidence against them I am not satisfied on the balance of probabilities that they were involved. 47Accordingly this aspect of the Applicant's claim is dismissed. 48In summary therefore I award : a) Unpaid rent $ 5.89 b) Agents fee on reletting of premises $13860.00 c) Damages for loss of bargain from 1 January 2011 to 30 September 2011 $39075.33 Total $52941.22 49As to interest it was submitted by Ms Lane that no interest should be payable as the claim is for unliquidated damages. However the damages were calculated as at 30 September 2011 and it would be unfair not to allow interest. Clause 11.6 of the Memorandum is not however applicable as (apart from the sum of $5.89) it applies in my view only to payments due under the lease. I will allow interest at 9% per annum from the mid point between 1 January 2011 and 30 September 2011 namely 15 May, such interest totalling $8276.25. 50In relation to costs I give each party liberty to file and serve submissions within 21 days. The opposing party liberty to respond within 21 days. Thereafter matter to be decided on the papers. In default of any submission seeking costs within the period stipulated there will be no order as to costs. 51Orders : 1. That Respondents pay to Applicant the sum of $61217.47 inclusive of interest. 2. Subject to paragraph 50 no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2013