Chapman v Cheng and Anor (RLD)

Appeal Panel - Internal

CITATION:	Chapman v Cheng and Anor (RLD) [2003] NSWADTAP 23
PARTIES:	APPELLANT Michelle Chapman FIRST RESPONDENT Y H Cheng SECOND RESPONDENT Z M Gao
FILE NUMBER:	039002
HEARING DATES:	09/05/2003
SUBMISSIONS CLOSED:	05/09/2003
DATE OF DECISION:	07/04/2003
DECISION UNDER APPEAL:	Chapman v Cheng & Anor (2002) NSWADT 275
BEFORE:	Chesterman M - ADCJ (Deputy President); Montgomery S - Judicial Member; Weule B - Member
CATCHWORDS:	leave to extend to the merits - refusal to receive evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	025057
DATE OF DECISION UNDER APPEAL:	12/20/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Chapman v Cheng & Anor [2002] NSWADT 275 Blackler v Felpure Pty Ltd [1999] NSWSC 958
REPRESENTATION:	APPELLANT C Chapman, agent FIRST RESPONDENT In person SECOND RESPONDENT Y H Cheng, agent
ORDERS:	Appeal dismissed

Introduction

1 This is an appeal by the Appellant Lessee against orders made by the Tribunal on her application and on the Respondents’ cross application. The Tribunal’s judgment, given by Mr B G Donald, Judicial Member, is reported as Chapman v Cheng & Anor [2002] NSWADT 275. The proceedings concerned a retail shop lease of a florist shop at Leumeah given by the Respondent Lessors.

2 The Appellant’s claim, as formulated during the hearing at first instance, alleged the following three grounds of recovery:-

· breach of covenant of quiet enjoyment arising out of events surrounding attempts by the Respondents to recover rent in arrears and to negotiate a higher rent;

· refund of bond money; and

· damages under a number of heads, on account of the Respondents having made statements about the Appellant’s failure to maintain rent payments, locked her out of the shop and terminated the lease.

3 In the cross application, the Respondents claimed unpaid rent.

The Tribunal’s findings of fact

4 The lease in this matter was expressed to be for a term of 26 weeks and contained a monthly holding over provision. It commenced on 7 March 1998. The Appellant and her husband, Mr Colin Chapman, took possession at some time thereafter and carried on business as a retail florist.

5 Until the second day of the hearing at first instance, both parties proceeded on the basis that the term of the lease was as just defined, and that from September 1998 onwards the Appellant had been a monthly tenant under a holding over provision. But it was then suggested on behalf of the Appellant that the lease might be subject to s 16 of the Retail Leases Act 1994 (‘the Act’). This section provides that, unless a certificate under s 16(3) is executed, the duration of a lease under the Act (including options granted at the outset) must not be less than five years. Under s 7, this provision overrides anything to the contrary in the lease.

6 When this matter was raised, neither party produced a certificate under s 16(3) or could give evidence indicating…