Botts v Grimme - [2001] NSWADT 14

CITATION: Botts v Grimme [2001] NSWADT 14

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Gertrude Evans Botts
RESPONDENT
Heindrich Wilhelm Torsten Grimme

FILE NUMBER: 005033

HEARING DATES: 10/10/2000, 11/10/2000, 23/11/2000

SUBMISSIONS CLOSED: 11/28/2000

DATE OF DECISION:
02/05/2001

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for relief against forfeiture

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: APPLICANT
R Angyal, Barrister
RESPONDENT
In person

ORDERS: 1. Applicant entitled to Lease of the premises known as 249 Riley Street, being art gallery, coffee shop and residential rooms at rear and above, with common use of the rear courtyard, for a term commencing 1st April 1999 and ending 30 March 2001, with a three year option of renewal, at a monthly rental of $2,200.00, 5% increase on first 1st April 2000, market review on exercise of option, and 5% annual increases thereafter, contribution to outgoing, 50% of water and sewerage rates, all other terms as per the Law Society Lease; 2. The Applicant is to, within 28 days of this date, serve on Respondents a notice in writing either exercising the option of renewal or stating that she will vacate no later than 30th March 2001; 3. If Applicant exercises option, Lease document, in compliance with these orders, signed by Respondent, to be submitted to Applicant within 21 days of rent being agreed or established by valuation Applicant to sign and return it. Respondent within 28 days of her receipt of it, together with payment of agreed costs of drawing Lease ($800.00) and stamp duty; 4. Applicant and Respondent, within 28 days of today to jointly apply to the South Sydney Council, in writing, seeking review of fire compliance order under Section 121B-6, dated 23 December 1999, seeking further formal inspection to establish Council’s requirement in view of current use of the premises as art gallery, coffee shop, and private residence; 5. Respondent not to proceed with building work which interferes in any way with the commercial or residential use of 249 Riley Street; In Botts v Grimme [2001] NSWADTAP 15 Appeal Panel makes, with the agreement of the parties, the following additional orders:; 6 As to the terms of the Law Society Lease referred to in Order 1, delete clause 10.7 from that Lease and substitute cl 38(b) of the 1994 Lease between the parties, subject to the last three words of cl 38(b) - "in clause 28", being replaced by the words -"in this Lease"; 7 As to the terms of the Law Society Lease referred to in Order 1, confirm that cl 7.4 remains applicable, but with the following additional term:; '7.5 If there is an order in existence as at 1 April 1994 compliance with that term will be the obligation of the lessor'

1 In these proceedings the Applicant Gertrude Evans Botts seeks, apart from ancillary matters, an order declaring that she validly exercised an option for a further term, and an order relieving her from the effect of a purported termination…

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.

Continue reading Botts v Grimme

Details

AGLC: Botts v Grimme [2001] NSWADT 14
Case: [2001] NSWADT 14
Decision Date: 02/05/2001

CaseChat Overview and Summary

In Botts v Grimme, the applicant sought a lease of premises located at 249 Riley Street, which includes an art gallery, coffee shop, and residential rooms. The dispute centred around the terms of the lease and the obligations of both parties, specifically regarding the renewal option and the contribution to outgoings. The matter was brought before the NSW Administrative Decisions Tribunal.

The legal issues that arose in this case involved the interpretation of the lease agreement, particularly the renewal option and the financial obligations of both parties. The applicant argued for a three-year renewal option and sought clarification on the contribution to outgoings, specifically water and sewerage rates. The respondent contested these terms, arguing for a different interpretation of the lease conditions.

The Tribunal found in favour of the applicant, establishing the lease terms as outlined in the orders. The Tribunal determined that the applicant was entitled to a lease with a renewal option and specified the financial obligations of both parties. The Tribunal also addressed the issue of the fire compliance order, requiring both parties to seek a review of the order to ensure compliance with the current use of the premises. Additionally, the Tribunal clarified the terms of the Law Society Lease, deleting clause 10.7 and substituting it with clause 38(b) of the 1994 Lease, with modifications to the wording. This decision provided clarity on the lease terms and the obligations of both parties, ensuring a fair agreement for the use of the premises.

The final orders of the Tribunal mandated the terms of the lease, including the renewal option and financial obligations, and required both parties to seek a review of the fire compliance order. Additionally, the Tribunal clarified the terms of the Law Society Lease, ensuring a fair agreement for the use of the premises.

Orders

Orders of the court

1. Applicant entitled to Lease of the premises known as 249 Riley Street, being art gallery, coffee shop and residential rooms at rear and above, with common use of the rear courtyard, for a term commencing 1st April 1999 and ending 30 March 2001, with a three year option of renewal, at a monthly rental of $2,200.00, 5% increase on first 1st April 2000, market review on exercise of option, and 5% annual increases thereafter, contribution to outgoing, 50% of water and sewerage rates, all other terms as per the Law Society Lease; 2. The Applicant is to, within 28 days of this date, serve on Respondents a notice in writing either exercising the option of renewal or stating that she will vacate no later than 30th March 2001; 3. If Applicant exercises option, Lease document, in compliance with these orders, signed by Respondent, to be submitted to Applicant within 21 days of rent being agreed or established by valuation Applicant to sign and return it. Respondent within 28 days of her receipt of it, together with payment of agreed costs of drawing Lease ($800.00) and stamp duty; 4. Applicant and Respondent, within 28 days of today to jointly apply to the South Sydney Council, in writing, seeking review of fire compliance order under Section 121B-6, dated 23 December 1999, seeking further formal inspection to establish Council’s requirement in view of current use of the premises as art gallery, coffee shop, and private residence; 5. Respondent not to proceed with building work which interferes in any way with the commercial or residential use of 249 Riley Street; In Botts v Grimme [2001] NSWADTAP 15 Appeal Panel makes, with the agreement of the parties, the following additional orders:; 6 As to the terms of the Law Society Lease referred to in Order 1, delete clause 10.7 from that Lease and substitute cl 38(b) of the 1994 Lease between the parties, subject to the last three words of cl 38(b) - "in clause 28", being replaced by the words -"in this Lease"; 7 As to the terms of the Law Society Lease referred to in Order 1, confirm that cl 7.4 remains applicable, but with the following additional term:; '7.5 If there is an order in existence as at 1 April 1994 compliance with that term will be the obligation of the lessor'

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Botts v Grimme [2001] NSWADT 14
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Gertrude Evans Botts RESPONDENT Heindrich Wilhelm Torsten Grimme
FILE NUMBER:	005033
HEARING DATES:	10/10/2000, 11/10/2000, 23/11/2000
SUBMISSIONS CLOSED:	11/28/2000
DATE OF DECISION:	02/05/2001
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for relief against forfeiture
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT R Angyal, Barrister RESPONDENT In person
ORDERS:	1. Applicant entitled to Lease of the premises known as 249 Riley Street, being art gallery, coffee shop and residential rooms at rear and above, with common use of the rear courtyard, for a term commencing 1st April 1999 and ending 30 March 2001, with a three year option of renewal, at a monthly rental of $2,200.00, 5% increase on first 1st April 2000, market review on exercise of option, and 5% annual increases thereafter, contribution to outgoing, 50% of water and sewerage rates, all other terms as per the Law Society Lease; 2. The Applicant is to, within 28 days of this date, serve on Respondents a notice in writing either exercising the option of renewal or stating that she will vacate no later than 30th March 2001; 3. If Applicant exercises option, Lease document, in compliance with these orders, signed by Respondent, to be submitted to Applicant within 21 days of rent being agreed or established by valuation Applicant to sign and return it. Respondent within 28 days of her receipt of it, together with payment of agreed costs of drawing Lease ($800.00) and stamp duty; 4. Applicant and Respondent, within 28 days of today to jointly apply to the South Sydney Council, in writing, seeking review of fire compliance order under Section 121B-6, dated 23 December 1999, seeking further formal inspection to establish Council’s requirement in view of current use of the premises as art gallery, coffee shop, and private residence; 5. Respondent not to proceed with building work which interferes in any way with the commercial or residential use of 249 Riley Street; In Botts v Grimme [2001] NSWADTAP 15 Appeal Panel makes, with the agreement of the parties, the following additional orders:; 6 As to the terms of the Law Society Lease referred to in Order 1, delete clause 10.7 from that Lease and substitute cl 38(b) of the 1994 Lease between the parties, subject to the last three words of cl 38(b) - "in clause 28", being replaced by the words -"in this Lease"; 7 As to the terms of the Law Society Lease referred to in Order 1, confirm that cl 7.4 remains applicable, but with the following additional term:; '7.5 If there is an order in existence as at 1 April 1994 compliance with that term will be the obligation of the lessor'