AXL Trading Pty Ltd v Prosha Pty Ltd - [2010] NSWADT 301

CITATION: AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
AXL Trading Pty Limited
RESPONDENT
Prosha Pty Limited and Stateland East Pty Limited

FILE NUMBER: 085172 and 085222

HEARING DATES: 23, 24, 25, 26 November 2009;28, 29 April; 21, 28 May and 19 June 2010

SUBMISSIONS CLOSED: 5 October 2010

DATE OF DECISION:
17 December 2010

BEFORE: Molloy G - Judicial Member

CATCHWORDS: Statutory Lease s. 16 - wrongful termination - damages

LEGISLATION CITED: Retail Leases Act 1994
Surveillance Devices Act 2007

CASES CITED: Bowden v. Lo [9802121]
Dean v. Stockland Property Management Pty Limited [2010] NSWCA 66
Ferrcom Pty Limited v. Inbush (NSW) Pty Limited (unreported) [1996] NSWCA 184
Holden Tourism and Hospitality Pty Limited v. Baldock [2001] NSWADT 123
O’Neill v. Henry [2010] NSWADTAP 40
Martin v. King [BC 9602847]
Parallel Lines International Pty Limited v. Video-Drama Pty Limited [2007] NSWADT 84
Prasad v. Fairfield City Council [2000] NSWADT 164
Symonds v Vass [2009] NSWCA 139
Tate v. Unanderra Heights Pty Limited [2005] NSWADTAP 5
Webb v. Clifton [2008] NSWADT 132

REPRESENTATION:
APPLICANT
A. Fernon, instructed by Peter M. Wayne
RESPONDENT
T. Anderson instructed by Fraser Clancy Lawyers

ORDERS: 1 The Respondent pay to the Applicant $108,707.47 by way of damages
2 The Applicant collect forthwith, and in any event, within fourteen days of the date of this decision, all its goods and chattels and cash of $120.00, held at the warehouse of RestorX, Wetherill Park; the Respondent to make immediate arrangements with RestorX to enable the Applicant to comply with this order; the collection of goods to be at the cost of the Applicant (ie. no charge to be made by the Respondent nor by RestorX against the Applicant)
3 Liberty to apply in relation only to any monetary calculations and/or the implementation of Order 2
4 Should either party seek to move the Tribunal for an order for costs, that party must file and serve any such Application, with support submissions, within twenty-eight (28) days of the date of this Decision. Should no such Application be so filed and served the order of the Tribunal will be that there is no order for costs. Should there be such an Application so filed and served the opposing party must file and serve submissions in reply within a further twenty-eight (28) days. Unless reasons are advanced for a hearing to be conducted, the issue of costs will be resolved.

REASONS FOR DECISION

The Lease

1 The Applicant was the Lessee of premises Shop 31, BKK East Lake Shopping Centre, Evans Avenue, Eastlakes pursuant to a registered Lease AD622105P (the “Lease”). The parties had previously signed a short term lease for Shop 31 commencing 1 April 2007 and expiring 31 August 2007.

2 The Lease was for a term of one year, commencing 1 August 2007 and terminating 31 July 2008. There was no option for renewal.

3 At the outset it is important, in my opinion, to decide precisely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWADT 301
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of AXL Trading Pty Ltd v Prosha Pty Ltd, the applicant sought relief for the respondent's alleged wrongful termination of a statutory lease. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales. The applicant claimed damages and sought the return of its goods and cash held by the respondent, asserting that the lease had been improperly terminated. The respondent, on the other hand, argued that the termination was justified under the terms of the lease.

The primary legal issues before the court were whether the respondent had wrongfully terminated the lease and, if so, the extent of the damages to which the applicant was entitled. The court had to interpret the provisions of the statutory lease and determine whether the respondent's actions constituted a wrongful termination. Additionally, the court needed to assess the appropriate measure of damages, including the value of the goods and cash held by the respondent.

The tribunal found that the respondent had indeed wrongfully terminated the lease, contrary to the provisions outlined in section 16 of the applicable statute. The tribunal concluded that the applicant was entitled to damages for the wrongful termination. The court ordered the respondent to pay the applicant $108,707.47 as compensation. Furthermore, the tribunal mandated that the applicant be allowed to retrieve its goods and cash from the warehouse of RestorX, with the respondent to facilitate this process without charging the applicant. The tribunal also set out the procedures for any applications regarding costs and the timeline for such applications.

In summary, the tribunal ruled in favour of the applicant, awarding damages and ordering the return of goods and cash, while setting out specific timelines and procedures for any future applications for costs.

Orders

Orders of the court

1 The Respondent pay to the Applicant $108,707.47 by way of damages

2 The Applicant collect forthwith, and in any event, within fourteen days of the date of this decision, all its goods and chattels and cash of $120.00, held at the warehouse of RestorX, Wetherill Park; the Respondent to make immediate arrangements with RestorX to enable the Applicant to comply with this order; the collection of goods to be at the cost of the Applicant (ie. no charge to be made by the Respondent nor by RestorX against the Applicant)

3 Liberty to apply in relation only to any monetary calculations and/or the implementation of Order 2

4 Should either party seek to move the Tribunal for an order for costs, that party must file and serve any such Application, with support submissions, within twenty-eight (28) days of the date of this Decision. Should no such Application be so filed and served the order of the Tribunal will be that there is no order for costs. Should there be such an Application so filed and served the opposing party must file and serve submissions in reply within a further twenty-eight (28) days. Unless reasons are advanced for a hearing to be conducted, the issue of costs will be resolved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT AXL Trading Pty Limited RESPONDENT Prosha Pty Limited and Stateland East Pty Limited
FILE NUMBER:	085172 and 085222
HEARING DATES:	23, 24, 25, 26 November 2009;28, 29 April; 21, 28 May and 19 June 2010
SUBMISSIONS CLOSED:	5 October 2010
DATE OF DECISION:	17 December 2010
BEFORE:	Molloy G - Judicial Member
CATCHWORDS:	Statutory Lease s. 16 - wrongful termination - damages
LEGISLATION CITED:	Retail Leases Act 1994 Surveillance Devices Act 2007
CASES CITED:	Bowden v. Lo [9802121] Dean v. Stockland Property Management Pty Limited [2010] NSWCA 66 Ferrcom Pty Limited v. Inbush (NSW) Pty Limited (unreported) [1996] NSWCA 184 Holden Tourism and Hospitality Pty Limited v. Baldock [2001] NSWADT 123 O’Neill v. Henry [2010] NSWADTAP 40 Martin v. King [BC 9602847] Parallel Lines International Pty Limited v. Video-Drama Pty Limited [2007] NSWADT 84 Prasad v. Fairfield City Council [2000] NSWADT 164 Symonds v Vass [2009] NSWCA 139 Tate v. Unanderra Heights Pty Limited [2005] NSWADTAP 5 Webb v. Clifton [2008] NSWADT 132
REPRESENTATION:	APPLICANT A. Fernon, instructed by Peter M. Wayne RESPONDENT T. Anderson instructed by Fraser Clancy Lawyers
ORDERS:	1 The Respondent pay to the Applicant $108,707.47 by way of damages 2 The Applicant collect forthwith, and in any event, within fourteen days of the date of this decision, all its goods and chattels and cash of $120.00, held at the warehouse of RestorX, Wetherill Park; the Respondent to make immediate arrangements with RestorX to enable the Applicant to comply with this order; the collection of goods to be at the cost of the Applicant (ie. no charge to be made by the Respondent nor by RestorX against the Applicant) 3 Liberty to apply in relation only to any monetary calculations and/or the implementation of Order 2 4 Should either party seek to move the Tribunal for an order for costs, that party must file and serve any such Application, with support submissions, within twenty-eight (28) days of the date of this Decision. Should no such Application be so filed and served the order of the Tribunal will be that there is no order for costs. Should there be such an Application so filed and served the opposing party must file and serve submissions in reply within a further twenty-eight (28) days. Unless reasons are advanced for a hearing to be conducted, the issue of costs will be resolved.