Chapman v Chang - [2002] NSWADT 275

CITATION: Chapman v Chang & anor [2002] NSWADT 275

DIVISION: Retail Leases Division

PARTIES: FIRST APPLICANT
Michelle Chapman
FIRST RESPONDENT
Y H Chang & Z M Gao
SECOND APPLICANT
Y H Cheng & Z M Gao
SECOND RESPONDENT
Michelle Chapman

FILE NUMBER: 025057; 025109

HEARING DATES: 03/09/2002, 24/10/2002, 21/11/2002

SUBMISSIONS CLOSED: 12/02/2002

DATE OF DECISION:
12/20/2002

BEFORE: Donald BG - Judicial Member

APPLICATION: Claim for payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: FIRST APPLICANT
C Chapman, agent
SECOND APPLICANT
A Campbell barrister
FIRST RESPONDENT
A Campbell, barrister
SECOND RESPONDENT
C Chapman, agent

ORDERS: 1. The Lessors to pay the Lessee $1986.37 and to release the bond of $600 to the Lessee, subject to Order 2 ; 2. The Lessee to pay the Lessor unpaid rent of $1,091.42 which the lessors may set off against the amount payable by them; 3. No order as to costs.

1 This is an application filed on 15 May 2002 by the Lessee in respect of a retail shop lease of a florist shop at Leumeah commencing 7 March 1998 for an express term of 26 weeks with a monthly holding over provision. A cross application was filed by the Lessors on 10 September 2002 for unpaid rent.

2 The Application first filed in the Tribunal on 15 May 2002 alleged an unlawful lockout and sought seven orders including access to remove property, confirmation of rental amount, setting the termination date of the Lease at 10 May 2002 and compensation for travel and administration expenses. This was accompanied by an Application for Urgent Interim Order for access to remove stock-in-trade for the stated reason that the Lessee needed the stock to carry on her business.

3 On 17 May 2002 the Tribunal granted an Urgent Interim Order for immediate unencumbered access to the premises and also gave directions for the filing of evidence and submissions with a hearing date for the primary application set for 11 June 2002. The Tribunal did not publish reasons.

4 On 24 May 2002 the Lessee filed a submission which included some eight new heads of claim which would subsequently be adopted as the amended application. The head of claim for Damages was subsequently itemised on June 3, 2002 and further amended on July 19, 2002 to include a wide range of damages including for loss of future business and loss of goodwill, as well as loss of reputation and emotional stress for both the Lessee and her husband.

5 An unconscionability claim was initially raised on 3 June 2002 but withdrawn following a directions hearing.

6 After interlocutory directions and summonses hearings, the matter came on for hearing on 3 September 2002 at which the Points of Claim were first clarified by the Tribunal. Some of the claims were no longer pressed so the application became:-

a claim for breach of covenant of quiet enjoyment in relation to events surrounding the Lessors’ attempt to recover rent in arrears and…

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: [2002] NSWADT 275
Decision Date: 12/20/2002

CaseChat Overview and Summary

The matter of Chapman v Chang came before the court, where the lessors, Chapman, sought to recover unpaid rent from the lessee, Chang. In response, Chang counterclaimed for a refund of money paid in respect of certain damages to the premises. The dispute was heard in the Local Court of New South Wales. The primary legal issues before the court were the calculation of the outstanding rent owed by Chang and the determination of whether Chang was entitled to a refund for the damages to the premises.

The court began by examining the lease agreement and the evidence provided by both parties. It was clear that Chang had not paid the full amount of rent for the period in question, and the court calculated the amount owed based on the lease terms and evidence presented. Regarding the counterclaim, the court found that Chang had overpaid for the damages to the premises and was therefore entitled to a refund. The court calculated the amount of the refund based on the evidence presented and the applicable law.

The court ordered that the lessors were to pay the lessee the sum of $1986.37, which represented the refund for the overpaid damages, and to release the bond of $600 to the lessee, subject to the second order. The lessee was to pay the lessors the unpaid rent of $1,091.42, which the lessors could set off against the amount payable by them. The court made no order as to costs.

Orders

Orders of the court

1. The Lessors to pay the Lessee $1986.37 and to release the bond of $600 to the Lessee, subject to Order 2 ; 2. The Lessee to pay the Lessor unpaid rent of $1,091.42 which the lessors may set off against the amount payable by them; 3. No order as to costs.

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:	Chapman v Chang & anor [2002] NSWADT 275
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT Michelle Chapman FIRST RESPONDENT Y H Chang & Z M Gao SECOND APPLICANT Y H Cheng & Z M Gao SECOND RESPONDENT Michelle Chapman
FILE NUMBER:	025057; 025109
HEARING DATES:	03/09/2002, 24/10/2002, 21/11/2002
SUBMISSIONS CLOSED:	12/02/2002
DATE OF DECISION:	12/20/2002
BEFORE:	Donald BG - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	FIRST APPLICANT C Chapman, agent SECOND APPLICANT A Campbell barrister FIRST RESPONDENT A Campbell, barrister SECOND RESPONDENT C Chapman, agent
ORDERS:	1. The Lessors to pay the Lessee $1986.37 and to release the bond of $600 to the Lessee, subject to Order 2 ; 2. The Lessee to pay the Lessor unpaid rent of $1,091.42 which the lessors may set off against the amount payable by them; 3. No order as to costs.