Davies v Lyndhurst Developments Pty Ltd

CITATION:	Davies v Lyndhurst Developments Pty Ltd [2000] NSWADT 196
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Jane Ann Davies RESPONDENT Lyndhurst Developments Pty Ltd
FILE NUMBER:	995021
HEARING DATES:	6/04/2000
SUBMISSIONS CLOSED:	04/06/2000
DATE OF DECISION:	04/06/2000
BEFORE:	Davidson R - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT K Harkness, solicitor RESPONDENT A McInerney, barrister
ORDERS:	1 The Tribunal has no jurisdiction in respect to the claims prior to the three year period having expired, but does have jurisdiction in respect of any amount which the applicant is able to establish after that three year period has expired; 2 Costs reserved

Ex Tempore Reasons for Decision

1 This is an application under the Retail Leases Act 1994. The applicant is the Lessee and the respondent is the Lessor of a video rental shop in a shopping mall at Bomaderry. The application was filed on 9 November, 1999 and an amended application was handed to the Tribunal today with leave of the Tribunal to file that with the Tribunal without prejudice to the aspect of jurisdiction now to be decided.

2 The application seeks an order that the respondent reimburse to the applicant all outgoings paid by the applicant in respect of shop number 1, Lyndhurst Drive, Bombaderry for the period 1 October 1994 to 14 April 1998 to the extent that such outgoings paid were a contribution to equipment or services, including audit fees, cleaning, house lights, water rates, insurance, maintenance, repairs, security, sign rental, toilet supplies, waste disposal, agents costs and legal costs being a claim in the sum of $14,001.11.

3 There was raised in respect to that at the forefront the aspect of whether or not the applicant claimed any sum for interest in addition to that under section 72A of the Retail Leases Act 1994. That question is still outstanding.

4 The applicant sought, however, in the alternative to that the following orders:

(1) That the landlord proceed to obtain an audit for the outgoings statements for the years 1994 to 1995, 1995 to 1996, 1997 to 1998 and provide the tenant with copies;
(2) That the landlord adjust the tenant's outgoings for the whole period 1 October 1994 to 14 April 1998 in view of such audited statements and repay the tenant any overpayment;
(3) That the tenant's proportion of outgoings be calculated at 10 per cent of the total and not 11.5 per cent;
(4) The respondent repay the applicant $463.30 being 11.5 per cent of the difference between estimated and audited actual outgoings, that is $4028.72 in respect of the outgoings for the year 1996 to 1997;
(5) If the respondent has failed by the date of the hearing of the application to obtain and serve audited statements on the applicant, then the respondent is to repay to the applicant all outgoings paid by the applicant for those years for which audited statements are not provided, being $2704.50 for the period…