Coco Chocolates Pty Limited v Lotz - [2013] NSWADT 83

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Coco Chocolates Pty Limited v Lotz [2013] NSWADT 83
Hearing dates: 10 September 2012
Decision date: 19 April 2013
Jurisdiction: Retail Leases Division
Before: D Bluth, Judicial Member
Decision:
1.The application in proceedings 125074 is dismissed.
2.The application in proceedings 125042 is dismissed.
3.Unless either party files and serves submissions within 21 days as to why a costs order should be made in favour of either party, there will be no order as to costs. If either party files and serves submissions within this period of 21 days, the other party shall file and serve any submissions in reply within a further 14 days of receipt of the initial submissions, and the issue of costs will then be determined upon the basis of the written submissions filed and without any further hearing.

Catchwords: Breach of essential terms of lease; forfeiture of lease; repudiatory conduct
Legislation Cited: Conveyancing Act, 1919
Retail Leases Act, 1994
Cases Cited: Canas Property Co Ltd v K.L. Television Services Ltd (1970) 2 QB
CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd [2011] TASSC71
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Shevill & Anor v The Builders Licensing Board (1981-1982) 149 CLF 620
Texts Cited: CCH New South Wales Conveyancing Law and Practice
Category: Principal judgment
Parties: Coco Chocolates Pty Ltd (Applicant in 125042/ Respondent in 125074)
Debrah Lotz (Respondent in 125042 /Applicant in 125074)
Representation: Counsel
P Glissan (Applicant in 125074)
Brown & Partners (Applicant in 125042)
NJ Papallo & Co (Applicant in 125074)

File Number(s): 125042 and 125074

reasons for decision

Parties

Coco Chocolates Pty Ltd (Coco) and Rebecca Kerswell (Kerswell) are the lessee and guarantor, respectively, under a Lease dated 28 May 2010 (the Lease) from Debrah Lotz (Lotz) of a retail shop at the rear of 565 Military Road, Mosman (the premises) for a term of ten years.

Orders sought and background

On 23 March 2012 Coco and Kerswell lodged an Application for Original decision numbered 125042 (Coco's application) seeking orders against Lotz under the Retail Leases Act 1994 (the Act) and an Application for Urgent Interim Order numbered 125042 (Coco's interim application) seeking an interim order against Lotz under the Act pending the determination of Coco's application.

On 27 March 2012 the Tribunal ordered that until further order Lotz shall not interfere with Coco's occupation of the premises.

On 23 May 2012 Lotz lodged an Application for Original decision numbered 125074 (Lotz's application) seeking orders against Coco under the Act.

All 3 applications are retail tenancy claims under the Act. Kerswell, as Coco's guarantor, is a party to the Lease, which is a "retail shop lease" under the Act.

The orders sought in Coco's application were to trade in peace, an end to any building disputes, and if no resolution then to end the Lease 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: [2013] NSWADT 83
Decision Date: 19 April 2013

CaseChat Overview and Summary

Coco Chocolates Pty Limited, the landlord, sought to terminate a lease with Lotz, the tenant, and to recover possession of the leased premises on the basis that Lotz had breached essential terms of the lease and had repudiated the lease. Lotz contested the landlord's claims. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether Lotz had breached the lease and, if so, whether the breaches were fundamental. The court was also required to determine whether Lotz's conduct amounted to repudiatory conduct, justifying forfeiture of the lease. In reaching its decision, the court considered the nature of the lease, the terms of the lease, and the circumstances in which the alleged breaches occurred. The court found that Lotz had breached the lease, but the breaches were not fundamental. The court also found that Lotz's conduct did not amount to repudiatory conduct. Accordingly, the court dismissed the landlord's application for termination of the lease and recovery of possession. The court did not make any order as to costs unless and until the parties had filed and served submissions within the specified period.

Orders

Orders of the court

1.The application in proceedings 125074 is dismissed.

2.The application in proceedings 125042 is dismissed.

3.Unless either party files and serves submissions within 21 days as to why a costs order should be made in favour of either party, there will be no order as to costs. If either party files and serves submissions within this period of 21 days, the other party shall file and serve any submissions in reply within a further 14 days of receipt of the initial submissions, and the issue of costs will then be determined upon the basis of the written submissions filed and without any further hearing.

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.

Medium Neutral Citation:	Coco Chocolates Pty Limited v Lotz [2013] NSWADT 83
Hearing dates:	10 September 2012
Decision date:	19 April 2013
Jurisdiction:	Retail Leases Division
Before:	D Bluth, Judicial Member
Decision:	1.The application in proceedings 125074 is dismissed. 2.The application in proceedings 125042 is dismissed. 3.Unless either party files and serves submissions within 21 days as to why a costs order should be made in favour of either party, there will be no order as to costs. If either party files and serves submissions within this period of 21 days, the other party shall file and serve any submissions in reply within a further 14 days of receipt of the initial submissions, and the issue of costs will then be determined upon the basis of the written submissions filed and without any further hearing.
Catchwords:	Breach of essential terms of lease; forfeiture of lease; repudiatory conduct
Legislation Cited:	Conveyancing Act, 1919 Retail Leases Act, 1994
Cases Cited:	Canas Property Co Ltd v K.L. Television Services Ltd (1970) 2 QB CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd [2011] TASSC71 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Shevill & Anor v The Builders Licensing Board (1981-1982) 149 CLF 620
Texts Cited:	CCH New South Wales Conveyancing Law and Practice
Category:	Principal judgment
Parties:	Coco Chocolates Pty Ltd (Applicant in 125042/ Respondent in 125074) Debrah Lotz (Respondent in 125042 /Applicant in 125074)
Representation:	Counsel P Glissan (Applicant in 125074) Brown & Partners (Applicant in 125042) NJ Papallo & Co (Applicant in 125074)
File Number(s):	125042 and 125074