Bartlett v Anderson; Anderson v Bartlett - [2000] NSWADT 86

CITATION: Bartlett -v- Anderson & anor; Anderson & anor -v- Bartlett [2000] NSWADT 86

DIVISION: Retail Leases Division

PARTIES:
APPLICANT (File No 995027)
Amanda Bartlett
RESPONDENTS (File No 995027)
Colin Anderson
Jan Anderson
APPLICANTS (File No 005010)
Colin Anderson
Jan Anderson
RESPONDENT (File No 005010)
Amanda Bartlett

FILE NUMBER: 995027; 005010

HEARING DATES: 05/06/2000, 19/06/2000

SUBMISSIONS CLOSED: 07/19/2000

DATE OF DECISION:
07/04/2000

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: APPLICANT/ RESPONDENT
In person
RESPONDENTS/APPLICANTS
R Ranken, solicitor

ORDERS: Matter number 995027: ; 1. The lease of the premises at Shop 1- 22 Lake Street, Laurieton between the Applicant and the Respondent, which commenced on 24 August 1998 by operation of the Retail Leases Act was validly terminated by re-entry, for failure to pay rent, on 28 October 1999.; 2. The Applicant is relieved from all obligations pursuant to the lease other than the obligation to pay rent, see order made in application 005010.; 3. Application for compensation refused.; Matter number 005010:; 1. In respect of the premises Shop 1- 22 Lake Street, Laurieton pursuant to lease implied by the Retail Leases Act, which commenced on 24 August 1998 by operation of the Retail Lease Act after allowing for proper set off, and taking into account the valid termination of the lease on 28 October 1999, rent payable by Lessee to Lessor is $540.00.

1 These proceedings were heard at Port Macquarie Court House on 5 and 19 June 2000, after failure of the mandatory mediation and after the refusal of a Preliminary Application by the Applicant Mrs Bartlett on 17 December 1999, for Interim Orders which would have allowed her back into possession of the pizza restaurant premises at Shop 1- 22 Lake Street, Laurieton premises. Mrs Bartlett, as tenant is the Applicant in matter number 995027 and the landlord Mr and Mrs Anderson are the Applicants in matter number 005010, which is in effect the cross-claim. Mrs Bartlett, before me, sought an order relieving her from any obligations following from her occupation between 24 August 1998 and 28 October 1999, and orders granting her compensation for the cost of installation of a pizza oven, the lease payments made for that oven, and the loss of value of the goodwill of the business which she had built up. The Andersons sought an order for the payment of rent in the sum of $8,350.00.

2 I had major written statements from Mrs Bartlett, Mr Bartlett, and Mr Anderson, and a confirmatory statement from Mrs Anderson, and each of the major witnesses were cross examined, on behalf of Mr and Mrs Anderson by their solicitor Mr Ranken, and by Mrs Bartlett on behalf of herself, she being unrepresented.

3 I note that Section 73(3) of the Administrative Decisions Tribunal Act directs me to act with as little formality as the circumstances…

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: [2000] NSWADT 86
Decision Date: 07/04/2000

CaseChat Overview and Summary

In the matter of Bartlett v Anderson; Anderson v Bartlett, the parties were involved in a dispute concerning a retail lease agreement for premises at Shop 1-22 Lake Street, Laurieton. The Applicant, Bartlett, sought to terminate the lease for non-payment of rent, while the Respondent, Anderson, disputed the termination and sought compensation. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The primary legal issues before the court were the validity of the termination of the lease by the Applicant for non-payment of rent, and the amount of compensation, if any, that should be awarded to the Respondent. The court had to determine whether the termination was lawful under the Retail Leases Act and if the Respondent was entitled to any compensation due to the termination.

The NCAT found that the lease was validly terminated by the Applicant for failure to pay rent. The court concluded that the termination was lawful under the Retail Leases Act as the Respondent had breached the lease by failing to pay rent. The court further found that the amount of rent payable by the Respondent to the Applicant, after allowing for proper set-off, was $540.00. The court refused the Respondent’s application for compensation. The court held that the Respondent was not entitled to compensation as the termination was lawful.

The orders made by the NCAT were that the lease was validly terminated, the Applicant was relieved from all obligations under the lease except for the obligation to pay rent, and the Respondent’s application for compensation was refused. The court also ordered that the Respondent pay the Applicant $540.00 in respect of the lease.

Orders

Orders of the court

Matter number 995027: ; 1. The lease of the premises at Shop 1- 22 Lake Street, Laurieton between the Applicant and the Respondent, which commenced on 24 August 1998 by operation of the Retail Leases Act was validly terminated by re-entry, for failure to pay rent, on 28 October 1999.; 2. The Applicant is relieved from all obligations pursuant to the lease other than the obligation to pay rent, see order made in application 005010.; 3. Application for compensation refused.; Matter number 005010:; 1. In respect of the premises Shop 1- 22 Lake Street, Laurieton pursuant to lease implied by the Retail Leases Act, which commenced on 24 August 1998 by operation of the Retail Lease Act after allowing for proper set off, and taking into account the valid termination of the lease on 28 October 1999, rent payable by Lessee to Lessor is $540.00.

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:	Bartlett -v- Anderson & anor; Anderson & anor -v- Bartlett [2000] NSWADT 86
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT (File No 995027) Amanda Bartlett RESPONDENTS (File No 995027) Colin Anderson Jan Anderson APPLICANTS (File No 005010) Colin Anderson Jan Anderson RESPONDENT (File No 005010) Amanda Bartlett
FILE NUMBER:	995027; 005010
HEARING DATES:	05/06/2000, 19/06/2000
SUBMISSIONS CLOSED:	07/19/2000
DATE OF DECISION:	07/04/2000
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT/ RESPONDENT In person RESPONDENTS/APPLICANTS R Ranken, solicitor
ORDERS:	Matter number 995027: ; 1. The lease of the premises at Shop 1- 22 Lake Street, Laurieton between the Applicant and the Respondent, which commenced on 24 August 1998 by operation of the Retail Leases Act was validly terminated by re-entry, for failure to pay rent, on 28 October 1999.; 2. The Applicant is relieved from all obligations pursuant to the lease other than the obligation to pay rent, see order made in application 005010.; 3. Application for compensation refused.; Matter number 005010:; 1. In respect of the premises Shop 1- 22 Lake Street, Laurieton pursuant to lease implied by the Retail Leases Act, which commenced on 24 August 1998 by operation of the Retail Lease Act after allowing for proper set off, and taking into account the valid termination of the lease on 28 October 1999, rent payable by Lessee to Lessor is $540.00.