Chronopoulos v. Carossel Pty Limited - [2010] NSWADT 191

CITATION: Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
John Chronopoulos
RESPONDENT
Carossel Pty Limited

FILE NUMBER: 095177

HEARING DATES: 7 July 2010

SUBMISSIONS CLOSED: 7 July 2010

DATE OF DECISION:
29 July 2010

BEFORE: Molloy G - Judicial Member

CATCHWORDS: Estoppel by convention

LEGISLATION CITED: Retail Leases Act, 1994.

CASES CITED: Amalgamated Investment and Property Co Ltd (in liq) v. Texas Commerce International Bank Ltd [1982] QB 84
Aspen Funds Management Ltd v.Hurst & Lim Pty Ltd [2009] NSWADT 286
AWPF Management Pty Limited v. Red Roll Pty Limited (RLD) [2009] NSWADTAP 3
Blockbuster Australia Pty Limited v. Karioi Pty Limited [2009] NSWSC 1089
Con-Stan Industries of Australia Pty Limited v. Norwich Winterthur Insurance (Australia) Ltd (1986) 160CLR226
Republic of India & Ors v. Indian Steamship Co Limited (reported House of Lords, Session 1997-98 decided 16 October 1997)
O’Neill v. Henry (RLD) [2010] NSWADTAP 40 at [42-45]
Prasad v. Fairfield City Council [2000] NSWADT 164
Tanzone v. Westpac [1999] NSWSC 478
Trustees of the Pious Society of St Charles v. Vodap Pty Limited [2004] NSWADT 71
Water, Wine and Juice v. Konstantopoulos [2009] NSWSC 1475
Waterman v. Gerling Australia Insurance Company Pty Limited [2005] NSWSC 1066
Watermark Restaurant Pty Limited v. Hunters Beach Investments Pty Limited [2004]
Webb v. Clifton [2008] NSWADT 132
Workcare Management Pty Limited v. Gajic Holdings Pty Limited [2010] NSWSC 479

REPRESENTATION:
APPLICANT
S Ipp instructed by H Danalis & Co
RESPONDENT
P Folino-Gallo instructed by Carbone Lawyers

ORDERS: 1.The Application is dismissed
2.Vacate the interim consent orders made 8 October 2009. In this regard liberty is granted to either party to apply, within 14 days
3.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.

REASONS FOR DECISION

Introduction

1 The issues agitated by the parties raised quite a number of interesting aspects of the law. It is convenient to start with the background facts, and then deal with the various issues of law raised by both parties.

2 As will become apparent, the case agitated by the Applicant shifted, such that the legal issue ultimately argued by the Applicant at hearing differed, or correctly, was totally different – to the issues as pleaded, such that the Applicant was obliged to re-plead its case during the course of the hearing by a Further Amended Application for Original Decision filed in the Tribunal by leave at 2-00 pm during the course of the hearing. I shall deal with this aspect in more detail below; but I observe that counsel for the Respondent 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: [2010] NSWADT 191
Decision Date: 29 July 2010

CaseChat Overview and Summary

Chronopoulos v. Carossel Pty Limited involved a dispute over the interpretation and effect of estoppel by convention. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The Applicant, Chronopoulos, sought to enforce an alleged agreement or understanding with the Respondent, Carossel Pty Limited, which he claimed was established through estoppel by convention. The Respondent argued that no such agreement existed and that the Tribunal should not enforce any such estoppel.

The central legal issue before the Tribunal was whether an estoppel by convention existed that would bind the Respondent to certain terms. The Tribunal had to consider the principles of estoppel by convention, including the requirements for establishing such an estoppel, and apply these principles to the facts of the case. Specifically, the Tribunal needed to determine if there was a clear and unambiguous representation or understanding that led to a detriment or expectation on the part of the Applicant, which the Respondent could not later renege on.

After considering the evidence and submissions, the Tribunal concluded that the Applicant had not established the existence of an estoppel by convention that would bind the Respondent. The Tribunal found that there was no clear and unambiguous representation or understanding that would lead to such an estoppel. The Tribunal dismissed the Application and vacated the interim consent orders made on 8 October 2009. The Tribunal also provided liberty for either party to apply within 14 days to address costs, should they choose to do so, and directed that if an application for costs was filed, the other party would have 14 days to respond, with the Tribunal making a decision on the papers unless it decided that oral submissions were necessary.

Orders

Orders of the court

1.The Application is dismissed

2.Vacate the interim consent orders made 8 October 2009. In this regard liberty is granted to either party to apply, within 14 days

3.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.

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:	Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT John Chronopoulos RESPONDENT Carossel Pty Limited
FILE NUMBER:	095177
HEARING DATES:	7 July 2010
SUBMISSIONS CLOSED:	7 July 2010
DATE OF DECISION:	29 July 2010
BEFORE:	Molloy G - Judicial Member
CATCHWORDS:	Estoppel by convention
LEGISLATION CITED:	Retail Leases Act, 1994.
CASES CITED:	Amalgamated Investment and Property Co Ltd (in liq) v. Texas Commerce International Bank Ltd [1982] QB 84 Aspen Funds Management Ltd v.Hurst & Lim Pty Ltd [2009] NSWADT 286 AWPF Management Pty Limited v. Red Roll Pty Limited (RLD) [2009] NSWADTAP 3 Blockbuster Australia Pty Limited v. Karioi Pty Limited [2009] NSWSC 1089 Con-Stan Industries of Australia Pty Limited v. Norwich Winterthur Insurance (Australia) Ltd (1986) 160CLR226 Republic of India & Ors v. Indian Steamship Co Limited (reported House of Lords, Session 1997-98 decided 16 October 1997) O’Neill v. Henry (RLD) [2010] NSWADTAP 40 at [42-45] Prasad v. Fairfield City Council [2000] NSWADT 164 Tanzone v. Westpac [1999] NSWSC 478 Trustees of the Pious Society of St Charles v. Vodap Pty Limited [2004] NSWADT 71 Water, Wine and Juice v. Konstantopoulos [2009] NSWSC 1475 Waterman v. Gerling Australia Insurance Company Pty Limited [2005] NSWSC 1066 Watermark Restaurant Pty Limited v. Hunters Beach Investments Pty Limited [2004] Webb v. Clifton [2008] NSWADT 132 Workcare Management Pty Limited v. Gajic Holdings Pty Limited [2010] NSWSC 479
REPRESENTATION:	APPLICANT S Ipp instructed by H Danalis & Co RESPONDENT P Folino-Gallo instructed by Carbone Lawyers
ORDERS:	1.The Application is dismissed 2.Vacate the interim consent orders made 8 October 2009. In this regard liberty is granted to either party to apply, within 14 days 3.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.