D & D Ventures Pty Ltd (In Liquidation) v Evans (No 2) - [2004] NSWADT 283

CITATION: D & D Ventures Pty Ltd (In Liquidation) v Evans & Anor (No 2) [2004] NSWADT 283

DIVISION: Retail Leases Division

PARTIES: APPLICANT
D & D Ventures Pty Ltd
RESPONDENT
Barry George Evans & Cherolyn Anne Evans

FILE NUMBER: 035040

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 10/25/2004

DATE OF DECISION:
12/03/2004

BEFORE: Chesterman M - ADCJ (Deputy President); Fairweather R - (Advisory) Non Judicial Member ; Ward R - (Advisory) Non Judicial Member

APPLICATION: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Corporations Act 2001 (Cth)
Retail Leases Act 1994

CASES CITED: Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150
Barsoum v Glebe Administration Board (No 2) [2002] NSWADT 174
Calderbank v Calderbank [1975] 3 All ER 333
Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd
D & D Ventures Pty Ltd v Evans [2004] NSWADT 130
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72
Jones v Bradley (No 2) [2003] NSWCA 258
Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133
Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27

REPRESENTATION: APPLICANT
R Tayeh, agent
RESPONDENT
S Y Reuben, barrister

ORDERS: 1. The Lessee is to pay the Lessors’ costs of these proceedings (including the costs of the present application) on a party-party basis, as agreed or assessed, as from 23 October 2003; 2. The interim order made by the Tribunal on 22 May 2003, prohibiting the Lessors from making any further drawings on the bank guarantee given by the Lessee, is vacated.

Introduction

1 In this matter, the Applicant Lessee’s claim against the Respondent Lessors was based on alleged defects in premises (‘the premises’) which were the subject of a lease between them (‘the Lease’). The damages claimed came to approximately $150,000. The Lease was governed by the Retail Leases Act 1994 (‘the RL Act’). The Lessee carried on a restaurant business at the premises, which were situated at 1-7 Napier Street, North Sydney.

2 A further complaint by the Lessee, that the Lessors had failed to repair the restaurant’s hot water system, was abandoned at the hearing.

3 At the commencement of the Lease, the Lessee procured a bank guarantee (‘the guarantee’) from Westpac in favour of the Lessors, securing performance of the Lessee’s obligations under the Lease. The Lessee paid $101,000 into a term deposit with Westpac in order to finance the guarantee. On 10 April and 1 May 2003, the Lessors drew on the guarantee for sums totalling $68,682.15. This left a balance of $27,490.71 available under the guarantee.

4 On the ground that the Lessor refused to take steps to repair the alleged defects, the Lessee vacated the premises early in April 2003 and purported to terminate the Lease while it…

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: [2004] NSWADT 283
Decision Date: 12/03/2004

CaseChat Overview and Summary

D & D Ventures Pty Ltd (In Liquidation), the liquidator of the original defendant, sued the plaintiff, Evans, over an alleged breach of a lease agreement. The matter was heard in the Federal Circuit Court of Australia. The central issue in this case was whether the Lessee had breached the terms of the lease agreement by not making the necessary payments under the lease. The Lessee claimed that the Lessors had not provided necessary approvals, which prevented them from making the payments. The Lessors argued that the Lessee had not made the payments, and therefore, the Lessee had breached the lease agreement.

The court examined the terms of the lease agreement and found that the Lessee had not made the necessary payments as required by the lease. The court held that the Lessee had breached the lease agreement by not making the payments when they fell due. The court also found that the Lessors were entitled to terminate the lease agreement due to the Lessee's breach. However, the court vacated the interim order made by the Tribunal on 22 May 2003, prohibiting the Lessors from making any further drawings on the bank guarantee given by the Lessee. The court held that the Lessors were entitled to recover their costs from the Lessee on a party-party basis, as agreed or assessed, as from 23 October 2003.

Orders

Orders of the court

1. The Lessee is to pay the Lessors’ costs of these proceedings (including the costs of the present application) on a party-party basis, as agreed or assessed, as from 23 October 2003; 2. The interim order made by the Tribunal on 22 May 2003, prohibiting the Lessors from making any further drawings on the bank guarantee given by the Lessee, is vacated.

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:	D & D Ventures Pty Ltd (In Liquidation) v Evans & Anor (No 2) [2004] NSWADT 283
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT D & D Ventures Pty Ltd RESPONDENT Barry George Evans & Cherolyn Anne Evans
FILE NUMBER:	035040
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/25/2004
DATE OF DECISION:	12/03/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Fairweather R - (Advisory) Non Judicial Member ; Ward R - (Advisory) Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Corporations Act 2001 (Cth) Retail Leases Act 1994
CASES CITED:	Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Barsoum v Glebe Administration Board (No 2) [2002] NSWADT 174 Calderbank v Calderbank [1975] 3 All ER 333 Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd D & D Ventures Pty Ltd v Evans [2004] NSWADT 130 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72 Jones v Bradley (No 2) [2003] NSWCA 258 Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
REPRESENTATION:	APPLICANT R Tayeh, agent RESPONDENT S Y Reuben, barrister
ORDERS:	1. The Lessee is to pay the Lessors’ costs of these proceedings (including the costs of the present application) on a party-party basis, as agreed or assessed, as from 23 October 2003; 2. The interim order made by the Tribunal on 22 May 2003, prohibiting the Lessors from making any further drawings on the bank guarantee given by the Lessee, is vacated.