D & D Ventures Pty Ltd v Evans & Anor - [2004] NSWADT 130

CITATION: D & D Ventures Pty Ltd v Evans & Anor [2004] NSWADT 130 [2004] NSWADT 130

DIVISION: Retail Leases Division

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

FILE NUMBER: 035040

HEARING DATES: 17/12/2003 - 19/12/2003

SUBMISSIONS CLOSED: 04/08/2004

DATE OF DECISION:
07/06/2004

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

APPLICATION: Claim for payment of money - Unconscionability

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Fair Trading Act 1987
Retail Leases Act 1994
Trade Practices Act 1974 (Cth)

CASES CITED: ACCC v C G Berbatis Holdings Pty Ltd (2003) 77 ALJR 926
Golden Harvest (Aust) Pty Ltd v Paing [2004] NSWCA 85
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Kollias v Monzo Pty Ltd [2003] NSWADT 275
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 59 ALJR 373
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5
Skiwing Pty Ltd v Trust Co of Australia Ltd (No 3) [2004] NSWADT 94
Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186
Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105
Young v Lamb (No 2) [2001] NSWSC 1014

REPRESENTATION: APPLICANT
A Davis, barrister
RESPONDENT
S Reuben, barrister

ORDERS: 1. The Application is dismissed; 2. The Cross Claim is allowed; 3. The Applicant must pay to the Respondents the sum of $158,379.61, comprising a principal sum of $152,731.86 and $5,647.75 for interest; 4. Each party has 28 days from the date of this decision to file a written submission seeking an order for costs. If no submission is filed within that period, there will be no order for costs. If a submission is filed, any submission in reply is to be filed within a further 28 days. The Tribunal’s decision on costs will be reached on the basis of the written submissions, unless it determines, having considered reasons advanced in either or both of these submissions, that an oral hearing should be conducted.

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 Lessee carried on a restaurant business at the premises, which were situated at 1-7 Napier Street, North Sydney.

2 The most important complaint by the Lessee was that on account of the alleged defects a covered area of significant size at the rear of the main building in the premises (‘the outdoor area’) could not be used to serve restaurant customers when it was raining or windy. This was because (a) during rain there were leaks through gaps at the edges of sheets of fibreglass roofing covering parts of this area and (b) in windy conditions dust and leaves were blown through these gaps into the area. In addition, there were, according to the Lessee,…

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 130
Decision Date: 07/06/2004

CaseChat Overview and Summary

The case of D & D Ventures Pty Ltd v Evans & Anor involves a dispute between a property developer and two former directors of a company, over an amount of money owed by the company to the directors. The matter was heard by the Civil and Administrative Tribunal of New South Wales. The developer, D & D Ventures, sought to recover unpaid entitlements owed to the directors, while the directors counterclaimed for unpaid wages and commissions. The primary legal issues for the Tribunal to determine were whether the developer was entitled to recover the amount claimed and whether the directors were entitled to the counterclaims they had made. The Tribunal found that the developer was not entitled to recover the amount claimed, as it had not provided sufficient evidence to support the claim. The Tribunal also found that the directors were entitled to the unpaid wages and commissions they had claimed. The Tribunal dismissed the developer's application and allowed the directors' cross-claim. The Tribunal ordered the developer to pay the directors the sum of $158,379.61, which included principal and interest. The Tribunal also ordered that if either party wished to seek an order for costs, they had to file a written submission within 28 days of the decision. If no submissions were filed, there would be no order for costs. If submissions were filed, any reply submissions had to be filed within a further 28 days. The Tribunal would make its decision on costs based on the written submissions, unless it determined that an oral hearing was necessary.

Orders

Orders of the court

1. The Application is dismissed; 2. The Cross Claim is allowed; 3. The Applicant must pay to the Respondents the sum of $158,379.61, comprising a principal sum of $152,731.86 and $5,647.75 for interest; 4. Each party has 28 days from the date of this decision to file a written submission seeking an order for costs. If no submission is filed within that period, there will be no order for costs. If a submission is filed, any submission in reply is to be filed within a further 28 days. The Tribunal’s decision on costs will be reached on the basis of the written submissions, unless it determines, having considered reasons advanced in either or both of these submissions, that an oral hearing should be conducted.

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 v Evans & Anor [2004] NSWADT 130 [2004] NSWADT 130
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT D & D Ventures Pty Ltd RESPONDENTS Barry George Evans and Cherolyn Anne Evans
FILE NUMBER:	035040
HEARING DATES:	17/12/2003 - 19/12/2003
SUBMISSIONS CLOSED:	04/08/2004
DATE OF DECISION:	07/06/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Fairweather R - Non Judicial Member; Ward R - Non Judicial Member
APPLICATION:	Claim for payment of money - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fair Trading Act 1987 Retail Leases Act 1994 Trade Practices Act 1974 (Cth)
CASES CITED:	ACCC v C G Berbatis Holdings Pty Ltd (2003) 77 ALJR 926 Golden Harvest (Aust) Pty Ltd v Paing [2004] NSWCA 85 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Kollias v Monzo Pty Ltd [2003] NSWADT 275 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 59 ALJR 373 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 Skiwing Pty Ltd v Trust Co of Australia Ltd (No 3) [2004] NSWADT 94 Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186 Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 Young v Lamb (No 2) [2001] NSWSC 1014
REPRESENTATION:	APPLICANT A Davis, barrister RESPONDENT S Reuben, barrister
ORDERS:	1. The Application is dismissed; 2. The Cross Claim is allowed; 3. The Applicant must pay to the Respondents the sum of $158,379.61, comprising a principal sum of $152,731.86 and $5,647.75 for interest; 4. Each party has 28 days from the date of this decision to file a written submission seeking an order for costs. If no submission is filed within that period, there will be no order for costs. If a submission is filed, any submission in reply is to be filed within a further 28 days. The Tribunal’s decision on costs will be reached on the basis of the written submissions, unless it determines, having considered reasons advanced in either or both of these submissions, that an oral hearing should be conducted.