Damage claims for repairs when leasing – Part Two

Posted on June 28th, 2017

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The NSW Court of Appeal case, Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20, is a particularly interesting case as it addresses two separate but interesting issues, being:

  1. What is the correct method of assessment of damages under a Lease for a breach of painting and repairing covenants? and
  2. When a party may make an application to appeal from a Judgment of the District Court for amounts under $100,000.00.

The facts of the case together with the measure of damages have been discussed in Part 1 of this series of articles. 

Application for Leave to Appeal

Section 127(2)(c) of the District Court Act NSW provides that a party must seek leave of the Court if a party who is dissatisfied with a Judgment of the District Court amount is a value of less than $100,000.00.

In the present case, the amount of the Judgment was $54,952.09 and therefore the Landlord had to seek leave to appeal.

The Court of Appeal confirmed the following principles that are relevant to the granting of leave to appeal.

  • Leave to appeal is granted only when the matter involves an issue of principle or question of general public importance, or where it is reasonably clear that there has been an injustice which, in the circumstances, should be addressed.
  • There are additional considerations in respect of leave applications involving relatively small amounts. One is the appropriate allocation of Court resources. Another is the disproportionate costs to the parties of appeals involving small amounts. The last matter is reflected in the terms of s 60 of the Civil Procedure Act 2005 (NSW) which provides that the practice and procedure of the Court should be implemented “with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute.”

For the reasons set out above, the Court of Appeal found that:

  • No issue of principle was raised by the proposed appeal nor did the decision involve an injustice.
  • The appropriate allocation of court resources and the incurring of additional costs by the parties were both factors weighing heavily against a grant of leave.

Lachlan Page, Solicitor at Mullane & Lindsay Solicitors, NewcastleLachlan Page is a Solicitor at Mullane & Lindsay Solicitors and practices extensively in commercial, business and property transactions and adviceIf you require any assistance in this area please contact Lachlan Page to arrange a consultation or contact our Newcastle off

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