Raymond v Emancee Pty Limited [2009] NSWADT 33 (18 February 2009)

Last Updated: 15 April 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Raymond v Emancee Pty Limited [2009] NSWADT 33


DIVISION:
RETAIL LEASES DIVISION

PARTIES:
APPLICANT
Arthur Allen Raymond

RESPONDENT
Emancee Pty Limited



FILE NUMBERS:
085032

HEARING DATES:
03 November 2008, 29 January 2009

SUBMISSIONS CLOSED:
29 January 2009



DATE OF DECISION:
18 February 2009

BEFORE:
Hole M - Judicial Member





LEGISLATION CITED:
Retail Leases Act 1994

CASES CITED:


TEXTS CITED:


APPLICATION:
Claim for payment of money.

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person

RESPONDENT
J Wawszkowicz, agent


ORDERS:
1. The application for the return of the Bond is refused. The Bond is to be released to Emancee Pty Limited
2. The applicant is to pay the outstanding rent in the sum of $11,596.10
3. Orders in application 085032 to be Orders in application 085097.


Reasons for Decision:

REASONS FOR DECISION

1 This application has been made by the applicant as the lessee of premises from the respondent pursuant to a registered lease for a period of 2 years commencing 1 January 2006 and terminating on 31 December 2007. This lease was in respect of premises known as Shop 4/135 – 137 Popondetta Road Emerton. The shop was known as "Jasmines" and occupied a corner of a small suburban shopping complex, the side of the shop consisted of a concrete wall. The applicant vacated the premises prior to the expiry of the lease and left the premises on or about 25 June 2007. The applicant seeks an order that the bond in the sum of $2,674.98 be returned to him.

2 This application was part heard on 3 November 2008, the matter was stood over to 29 January 2009 for the completion of the hearing. Directions were made on 3 November 2008 to permit the applicant to file and serve further affidavits and for the respondent to also file and serve further affidavits in reply. The application had been set down for hearing on two prior occasions and for directions on five occasions.

3 This application was heard together with application no 085097 being an application by Emancee Pty Limited, the lessee, seeking payment of unpaid rent. Matter no 085097 was commenced by way of Statement of Claim in the Local Court at Parramatta and was transferred to this Tribunal pursuant to section 75 of the Retail Leases Act 1994 by consent of the parties.

History of the lease

4 Following the applicant occupying the premises on 1 January 2006 the exterior walls of the premises were subjected to graffiti. The applicant corresponded with the agent for the respondent with a view to having the graffiti removed. The applicant was concerned about the way the graffiti would affect his customers and resorted to over-painting of the graffiti with white clouds and then using those clouds as background to paint notices relating to goods for sale in his shop.

5 The applicant negotiated with the agent for the respondent in 2005 to continue leasing the premises after the expiry of the then existing rental arrangement. As a result of these negotiations the lease referred to in paragraph 1 was entered into. The applicant provided a letter to the Tribunal stating that there was graffiti on the wall as at the date of entering into the new lease and that part of the agreement whereby the lease was entered into was to the effect that the graffiti would be removed and that a new sign would be erected informing the public that "Jasmines Genuine Discount Variety" was now trading at the premises known as Shop 4. The applicant indicated in his letters directed to the agent that there should be a rebate on the rent as at 22 April 2006 as the sign had not been erected. The applicant wrote to the agent after vacating the property noting that he had requested, on numerous occasions, that the graffiti be removed and that the shutters on the front of the shop be cleaned.

6 During the period 4 December 2006 to 14 December 2006 the respondent caused the exterior of the premises to be painted and the removal of the applicant’s advertising signature sign above the entrance. During that period the applicant was unable to open the access door to the premises on five occasions two of which related to the whole day and at other times access was gained through another shop. The applicant maintains that the door remained defective for three days at one point in time and two days at another point of time.

7 According to the applicant, on at least 5 or 6 occasions during the term of the lease, the graffiti was cleaned from the walls and shutters.

8 The applicant noted in a copy of a letter to the respondent provided to the Tribunal that there had been roof leakages which had flooded the shop and which were repaired only after three days.

Evidence

9 The applicant provided photographs to the Tribunal of graffiti on the exterior walls and shutters and relied on photographs annexed to material provided by the respondent.

10 The applicant supplied two undated and unsworn statutory declarations to the Tribunal in respect of the graffiti, the removal of the signs and proposed painting of the building. The copy declarations did not disclose a date or signatures of the declarant or witness. The applicant also supplied a copy of a letter to the respondent dated 12.12.06 stating that "Xmas losses are quite simple, taking from 4th September 2006 to 1st February (sic) 2007" there then followed a list of weekly dates with stated sums of money.

11 The applicant sought to establish loss of business caused by the respondent painting the premises, removal of the applicant’s signs by the respondent and the difficulties of access caused by the applicant between the 4th and 14th December 2006 by way of a copy of results of a petition signed at the counter in the shop. This petition was signed by some 53 persons and was headed:

"For JASMINES located at Emerton Shopping Village.

Dear Patrons, Members of the community and visitors to Emerton Shopping Village.

On the 4th to the 5th of December 2006 the building which holds JASMINES was painted. All signage and additional notifications of JASMINES was removed and is as still not reinstated.

We are asking for everyone who believed JASMINES to be closed and/or no longer trading due to the blanking out of our signage to sign the below form. We also ask anyone who knows someone who believed this or who heard others state this to sign below.

Please include any comments you have regarding this."

The petition was noted on the cover with a hand written note that:

‘ONLY GENUINE

WILLING TO GO

TO COURT TO

TESTIFY’

12 The respondent provided an affidavit by the Commercial Property Manager of the agent for the respondent. This affidavit included a history of the rental of the premises, including the graffiti, removal of the graffiti, painting of the exterior of the building and removal of unauthorised signage, provision of main street signage. The affidavit also included details concerning the roof leakages, access to the premises and attempts to negotiate resolution of grievances of the applicant.

Submissions

13 The applicant, on 3 November 2008, made verbal submissions that the photographs provided and the copy of the petition signed by customers of the shop between 27.12.06 and 25.1.07 supported the application. The hearing was adjourned to 29.1.09 to allow the applicant to provide evidence that would support the claim for the return of the bond and to defend the claim by the respondent for unpaid rent following the applicant’s vacating the premises prior to expiry of the lease due to the affect on the business as a result of the lessor’s activities and/or inactivity's. The applicant did not provide any further evidence and did not attend on 29 January 2009.

14 On 3 November 2008 the applicant submitted that he was entitled to compensation for disturbance pursuant to the provision of section 34 and that he should not be liable for the outstanding rent as the terms of the lease had not been complied with by the respondent due to the following activities:

graffiti not removed from the exterior of the premises,

exterior signage not erected on time and as agreed,

broken promises of signs to be provided,

the trading figures for the period of disruption when painting being attended were below usual trading figures,

access doors to premises closed for 5 days,

flooding from roof leakages,

forced to close, and

the respondent had not maintained the premises in good condition and serviceable repair in accordance with clause 7.1 of the lease.

15 The respondent relied on the evidence provided by way of two affidavits of the Commercial Property Manager.

Reasons for decision

16 The applicant did not provide evidence to the Tribunal to support the contentions and submissions set out paragraph 14.

17 The exterior of the premises was blighted by graffiti as, unfortunately, many walls in shopping centres are. The evidence provided in the affidavit by the Commercial Property Manager, who was available for cross-examination, disclosed that action was taken to attempt to clear the graffiti regularly.

18 The respondent’s agent refuted that there had been any agreement to erect main street signage in the affidavit supplied to the Tribunal.

19 The copy of the petition supplied to the Tribunal can not be relied upon as evidence to support the application for return of the bond or to defend the claim by the respondent for unpaid rent.

20 The evidence of the respondent, included in the affidavit by the Commercial Property Manager, discloses that the respondent attempted to mitigate its loss for unpaid rent by reletting the premises and was unable to relet until 14 October 2007. The respondent then invoiced the applicant for the period from the date the applicant abandoned the premises on 25.6.07 to 30.9.07 although this period could have extended to 14 October 2007. At the time that the applicant vacated the premises rent had been paid up to 31 May 2007.

21 The respondent attended to the cleaning of the exterior in accordance with terms of the lease, made arrangements for alternate exterior signage, which were not accepted by the applicant, and attended to repairs and maintenance as and when required.

22 The applicant alleges that access to the premises was precluded or impeded during the period from 4 to 14 December 2006. The evidence of the respondent confirms that there were two entry points to the premises available.

23 The evidence supplied to the Tribunal supports the claim by the respondent for unpaid rent. The evidence does not support the return of the bond to the applicant.

ORDERS

1. The application for the return of the Bond is refused. The Bond is to be released to Emancee Pty Limited

2. The applicant is to pay the outstanding rent in the sum of $11,596.10

3. Orders in application 085032 to be Orders in application 085097.