Christofi v Mohammady (RLD) [2013] NSWADTAP 10

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Christofi v Mohammady (RLD) [2013] NSWADTAP 10 Hearing dates: 30 November 2012 Decision date: 26 February 2013 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President K Rickards, Judicial Member J Schwager, Non-judicial Member Decision: 1. The appeal is allowed in part. 2. In order 2 in the Tribunal's decision dated 22 June 2012, the amount ordered to be paid by the Respondents to the Applicant is reduced from $8,417.00 to $5,834.07. 3. The parties are to bear their own costs of the appeal. Catchwords: Retail lease - abatement of rent - diminished useability due to damage Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Lovecek v JV Idola Pty Ltd and ors [2011] NSWADT 18 Mohammady v Christofi [2012] NSWADT 122 Category: Principal judgment Parties: George Christofi (First Appellant) Elizabeth Christofi (Second Appellant) Abdul Razul Mohammady (Respondent) Representation: George Xylas (Appellants) Dehsabzi Lawyers (Respondent) File Number(s): 129020 Decision under appeal Citation: Mohammady v Christofi [2012] NSWADT 122 Date of Decision: 2012-06-22 00:00:00 Before: Retail Leases Division File Number(s): 115012

reasons for decision

Background 1This is an appeal against the decision of the Retail Leases Division in Mohammady v Christofi [2012] NSWADT 122. In that decision, delivered on 22 June 2012, the Tribunal held that Abdul Razul Mohammady, the lessee of retail shop premises in Granville (hereafter 'the Premises' or 'shop 5'), was entitled to recover the sum of $10,867.00 from the lessors, George and Elizabeth Christofi. The Tribunal also ordered the lessors to pay 50% of the lessee's costs. 2The term of the lease between the parties ('the Lease') was from 1 April 2009 to 31 March 2012. The initial monthly rent was $1,906.66 including GST. The permitted use was the business of a tailor. It was common ground that the Lease was governed by the Retail Leases Act 1994 ('the RL Act'). 3The hearing by the Tribunal took place on 30 November and 22 December 2011. The only witnesses were the three parties: Mr Mohammady, the lessee, and Mr and Mrs Christofi, the lessors. 4The sum ordered to be paid by the lessors to the lessee, $10,867.00, had two components: an award of $2,450.00 as compensation for 'loss of stock and garments', and an award of $8,417.00 by way of rent abatement. These awards were both based on findings that during the period from June 2009 through to mid-April 2011, rain had leaked through the ceiling, causing damage to the lessee's trading stock and diminishing the useability of the Premises. 5The lessors filed a Notice of Appeal on 20 July 2012. The sole ground stated in it was that the Tribunal had erred in law through making a finding of fact for which there was no evidence. This finding related to the area of the ceiling of the Premises that had suffered from rain damage. It was claimed in the Notice that on account of this error the amount that the Tribunal awarded by way of abatement of rent was excessive. 6The lessors also applied for a stay of the Tribunal's order pending the hearing of the appeal. The hearing of this stay application, set down for 6 August 2012, was vacated following an undertaking by the lessee's solicitor, given on 2 August, that the lessee would not enforce the Tribunal's order until the appeal had been determined. 7On 27 August 2012, the lessors filed and served written submissions in support of their appeal. On 15 October, the Registry notified the parties that the hearing of the appeal was to take place on 30 November. Although in written directions dated 2 August it was stated that the lessee should file his submissions within 21 days after the lessors had served their submissions, it was not until 27 November that the lessee's submissions were received (by fax) in the Registry. 8At the hearing of the appeal before us on 30 November 2012 (as also at the Tribunal hearing), Mr Xylas appeared for the lessors and Mr Dehsabzi for the lessee.