Awad v Bucasia Pty Ltd

CITATION:	Awad v Bucasia Pty Ltd [2003] NSWADT 247
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Regaie Gaber Ekladious Awad trading as Eastwood Night & Day Pharmacy RESPONDENT Bucasia Pty Ltd
FILE NUMBER:	035056, 035085
HEARING DATES:	30/09/03
SUBMISSIONS CLOSED:	10/30/2003
DATE OF DECISION:	11/18/2003
BEFORE:	Chesterman M - ADCJ (Deputy President); Fagg N - Member; Griffiths G - Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Commonwealth v Verwayen (1990) 170 CLR 394 Jones v Dunkel (1959) 101 CLR 298 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 Wallville Pty Ltd v Liristis Holdings Pty Ltd [2001] NSWSC 894
REPRESENTATION:	APPLICANT R Colquhoun, barrister RESPONDENT J Loofs, barrister
ORDERS:	1 Application by Applicant Lessee dismissed; 2 In the absence of agreement between them, each of the parties is to file written submissions on the matter of costs (including the costs of the Lessee's application for an urgent interim order, heard on 27 October 2003) within 28 days of these reasons

1 In this case, the Applicant Lessee, Mr Ragaie Awad (‘the Lessee’) sought an order that the Respondent Lessor, Bucasia Pty Ltd (‘the Lessor’) grant to him a lease of three years, starting from 1 July 2003, of three shops, constituting a pharmacy, and an office (‘the premises’) at 572-580 Blaxland Road, Eastwood (‘the building’). The ground on which he made this claim was that he had validly exercised an option of renewal for three years of a lease of the premises (‘the Lease’) which expired on 30 June 2003. In the alternative, the Lessee sought an award of damages against the Lessor on account of its refusal to grant him a renewed lease.

2 It was common ground that the Lease was a retail shop lease governed by the Retail Leases Act 1994 (‘the Act’). The Applicant maintained both a retail tenancy claim, under s 71 of the Act, and an unconscionable conduct claim under s 71A.

3 The Lessor filed a cross application, which was, in substance, a defence to the Lessee’s application.

4 The question of primary importance was a factual one. It was whether the Applicant complied with express requirements, set out in clause 20.1 of the Lease, that any notice of intention to exercise the option to renew it must be in writing and must be received by the lessor not less than six months before its expiry – that is, on or before 31 December 2002.

5 The Lessee alleged that he complied with these requirements by sending such a notice by fax to agents of the Lessor on 18 December 2002, and by post to the same agents on or shortly after this date. The Lessor alleged that no such notice was sent or received until January 2003.

6 The Lessee also claimed that, if the option was not shown to have been exercised as so alleged, the conduct of the…