Campbell v Astill; Astill v Campbell

CITATION:	Campbell v Astill; Astill v Campbell [2004] NSWADT 277
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT/CROSS RESPONDENT: Elizabeth Campbell RESPONDENT/CROSS APPLICANT Berndette Astill
FILE NUMBER:	045081 and 045091
HEARING DATES:	4/11/2004
SUBMISSIONS CLOSED:	11/17/2004
DATE OF DECISION:	12/02/2004
BEFORE:	Donald BG - Judicial Member; Fairweather R - (Advisory) Non Judicial Member ; Harrison B - (Advisory) Non Judicial Member
APPLICATION:	Claim for relief against forfeiture - Claim for surrender of possession of premises - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Limited -v- Total & Universal Pty Limited (RLD) [2002] NSWADTAP 16 Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2)[2004] NSWADT 72 Skiwing Pty Ltd v Trust Co of Australia Ltd (No 4) [2004] NSWADT 162
REPRESENTATION:	APPLICANT/CROSS RESPONDENT J V Gooley, barrister RESPONDENT/CROSS APPLICANT P J Grant, solicitor
ORDERS:	1. Application 045091 dismissed; 2. In Application 045081, the Lessee to surrender possession of the premises Shop 4/22 Darley Road, Manly on or before 5 December 2004; 3. Lessee to pay the Lessor’s costs as agreed or assessed

Introduction

1 Mrs Elizabeth Campbell owns a shop in Manly which is leased to Mrs Bernadette Astill who runs a bookshop, ‘Readability’. Mrs Campbell has given notice bringing the lease to an end. Mrs Astill says Mrs Campbell is not entitled to do that because she has acted unconscionably.

2 The Tribunal has determined that Mrs Campbell is entitled to terminate the lease and has not acted unconscionably. The Tribunal has also decided that Mrs Astill should pay Mrs Campbell’s costs.

The Applications

3 Application 045081 is by Mrs Campbell, the Lessor of Shop 4/22 Darley Road, Manly, for surrender of possession of the premises by the Lessee, Mrs Astill.

4 Mrs Astill cross-claims, Application 045091, that the conduct of Mrs Campbell has been unconscionable within s.62B of the Retail Leases Act 1994 and that she is entitled to remain in possession of the shop as a consequence of that unconscionable conduct.

5 Accordingly the Tribunal has been constituted in accordance with the rules governing unconscionable conduct claims: see Administrative Decisions Tribunal Act 1997, Schedule 2, Part 3B, cl 4. The Tribunal is made up of a presiding judicial member of the kind required by cl 1(3)(a) of Part 3B (a person with experience or qualifications equivalent to a retired Supreme or Federal Court judge), and non-judicial members sitting in advisory capacity one with the experience referred to in cl 1(3)(b) (experience as a lessor, or working on behalf of lessors, under retail shop leases) and the other with the experience referred to in cl 1(3)(c) (experience as a lessee, or working on behalf of lessees, under retail shop leases).

6 At the beginning of the hearing the Tribunal was informed that the Lessor, an elderly woman, was unable to attend that day for medical reasons…