Written by The recent case of Novelly v Tamqia Pty Ltd [2022] NSWSC 1607considered obligations of a landlord to repair and maintain a premises in circumstances of an alleged breach of the lease. The tenant claimed that his landlord breached his residential lease at “The Hyde” in Sydney of a three level penthouse with ‘panoramic views.’ The apartment was serviced by an internal lift, and had an outdoor pool on the top level.
The issues for the court were whether the landlord breached its obligations for lift management; whether it breached its obligations to keep various amenities in reasonable repair such as some lights, the burners on the barbeque, the pool heater; and, if any breaches were found, whether specific performance was available as a remedy. The tenant did not provide any photographic evidence of the alleged breaches, nor was any view of the premises undertaken, so the case rested on his affidavit and oral evidence.
The general rule for specific performance is that it is only available where the payment of damages would be an inadequate remedy. In assessing the adequacy of damages, the ordinary measure of damages for a breach of covenants to repair is the difference between the value of the premises to the lessee in their present state of repair and the value to the lessee if the landlord had fulfilled the obligation to repair.
The Court did not accept that specific performance should be ordered in circumstances where the plaintiff could not identify any real negative impact of a breach of contract or the negative impact is very small.
The Court held that the cost of the work necessary to remedy any of the alleged defects would be negligible, particularly in comparison to the legal costs incurred by the parties. In light of the overriding purpose of civil litigation set out in s 56 of the Civil Procedure Act 2005 (NSW), the plaintiff’s claims for specific performance were dismissed and each party had to pay their own costs.