The appellant landlord appealed a trial judgment that applied a 35 per cent 'betterment' discount to damages awarded for the respondent tenant's breach of repair and restoration covenants in a commercial lease.
The Court of Appeal held that while the lease's 'reasonable wear and tear' exception applied, the tenant bore the burden of proving the extent to which the damages fell within this exception.
Because the tenant failed to adduce evidence supporting the 35 per cent discount, the Court removed the discount, increasing the landlord's damages.
The Court also allowed the tenant's cross-appeal in part, reducing the interest rate to the Courts of Justice Act rate and reducing the costs award to reflect the actual rates billed to the landlord.
