Baron + Associates was recently retained in litigation involving a tenant of a shop in Bondi Beach owned by our client and the tenants’ guarantor. The tenant vacated the shop prior to the termination date and as a result our client sought recovery of unpaid rent, reimbursement of costs to make good the premises, interest, and costs.

The tenant and guarantor sought to have the lease declared invalid on the grounds of purported misleading and deceptive conduct on the part of the landlord, specifically claiming that the signature of one guarantor was not made in the presence of a witness, and that the lease did not contain a deposited plan of subdivision, a subdivision certificate, or a survey. They also claimed that the lessee had returned the Lessors Disclosure Statement with a notation that they required the shop to include a separate electricity meter. These defences were rejected by the Tribunal in the original NCAT hearing and the tenant and guarantor pursued an appeal. 

The appellant raised several grounds of appeal, one of which was that the Tribunal erred in failing to find that the landlord engaged in misleading and deceptive conduct for reasons including the claim that it failed to correct the guarantor’s purported understanding that the premises were to be separately metered for electricity.

There was no evidence that any issue was raised by the tenant and or guarantor with the agent or any person concerning his request that the shop contain a separate electricity meter. As a result, the appellant was unable to establish that he was misled or under a misapprehension of which the lessor was aware and the Appeal was dismissed with the result that the original Tribunal’s order in favour of the Landlord for $750,000 (the maximum amount claimable in this jurisdiction) became enforceable.

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