Colleja v Malli - [2001] NSWADT 20

CITATION: Calleja -v- Malli [2001] NSWADT 20

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Agostino Calleja
RESPONDENT
Jasbir Singh Malli

FILE NUMBER: 005022

HEARING DATES: 05/10/2000
06/10/2000

SUBMISSIONS CLOSED: 12/08/2000

DATE OF DECISION:
02/13/2001

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for payment of money - Claim for relief against forfeiture - Claim for surrender of possession of premises - Jurisdiction

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: APPLICANT
G Kennedy, barrister
RESPONDENT
J Burrell, solicitor

ORDERS: 1. The Lease be and is hereby forfeited, Applicants entitled to immediate possession of the shop and storeroom.; 2. The Respondent to pay Applicants’ costs of attending at hearing on 6 October (but not the cost of preparing for that day’s hearing) and the Applicants’ subsequent costs of making written submissions- all on a party/party basis.; 3. Respondent’s application dismissed.

1 In these proceedings the applicant landlords seek orders forfeiting the respondent tenant’s Lease and directing the payment of rent arrears, and the Respondent by way of cross application seeks an order for relief against forfeiture and for damages to compensate for the destruction of the good will of the tenant’s convenience store business, and an order that the term of the Lease be extended for a period of twelve months.

2 The premises in question are a residence and attached corner store at 72 Maloney Street, Eastlakes, the whole of the building dating from the 1940s, and apparently always used and occupied as a shop and attached residence. The Applicants purchased the premises as an income earning investment late in 1996, with an existing tenant who subsequently thereafter vacated.

3 As far as I am able to gather from the quite confusing and perhaps marginally relevant evidence, there was a subsequent tenant, but, by 1998, that tenant had vacated and a Mr Marabaanie took occupation. At the time of this changeover, Mr Calleja, who has some building skills, installed new industrial grade lino to the floor. The shop, at that time, had fitted wooden shelves around the walls, and an old display serving counter of some kind, which had previously been refrigerated, but no longer functioned as such.

4 Mr Marabaanie installed several air conditioning units in upper window apertures, but such installation left unglazed gaps between the units and the window frames.

5 In January of 1999 the Respondent entered into an agreement for the purchase of the business for $8,000.00 from Mr Marabaanie, such price being apportioned as follows:

6 The contract contained no inventory to identify the “fixtures, plant and fittings and chattels”.

7 As the hearing progressed it became clear that I must decide which of these items belong to the applicant landlords, and which belong to the tenant.

8 The contract was subject to the grant of a Lease by the Applicants to the Respondent, and that was entered into on…

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.

Continue reading Colleja v Malli

Details

AGLC: Colleja v Malli [2001] NSWADT 20
Case: [2001] NSWADT 20
Decision Date: 02/13/2001

CaseChat Overview and Summary

Colleja v Malli involved a dispute between two parties, Colleja and Malli, concerning a lease agreement over a shop and storeroom. The case was heard by the NSW Supreme Court. The applicants, Colleja, sought to have the lease forfeited and to obtain immediate possession of the shop and storeroom. They also requested that the respondent, Malli, pay certain costs associated with the proceedings.

The central legal issues before the court were whether the applicants had a valid basis to forfeit the lease and whether the applicants were entitled to the costs they sought. The court had to consider the terms of the lease agreement, the conduct of the parties, and the applicable law in determining these issues.

The court found that the applicants had a valid basis for forfeiting the lease, as the respondent had breached the lease agreement. The court ruled that the applicants were entitled to immediate possession of the shop and storeroom. The court also determined that the applicants were entitled to certain costs, but not to the full amount they requested. The court dismissed the respondent's application, ordering the lease to be forfeited and granting the applicants’ costs in part.

Orders

Orders of the court

1. The Lease be and is hereby forfeited, Applicants entitled to immediate possession of the shop and storeroom.; 2. The Respondent to pay Applicants’ costs of attending at hearing on 6 October (but not the cost of preparing for that day’s hearing) and the Applicants’ subsequent costs of making written submissions- all on a party/party basis.; 3. Respondent’s application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Calleja -v- Malli [2001] NSWADT 20
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Agostino Calleja RESPONDENT Jasbir Singh Malli
FILE NUMBER:	005022
HEARING DATES:	05/10/2000 06/10/2000
SUBMISSIONS CLOSED:	12/08/2000
DATE OF DECISION:	02/13/2001
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for payment of money - Claim for relief against forfeiture - Claim for surrender of possession of premises - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT G Kennedy, barrister RESPONDENT J Burrell, solicitor
ORDERS:	1. The Lease be and is hereby forfeited, Applicants entitled to immediate possession of the shop and storeroom.; 2. The Respondent to pay Applicants’ costs of attending at hearing on 6 October (but not the cost of preparing for that day’s hearing) and the Applicants’ subsequent costs of making written submissions- all on a party/party basis.; 3. Respondent’s application dismissed.