De Luca & Anor v Scuccimarra & Anor - [2007] NSWADT 63

CITATION: De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63

DIVISION: Retail Leases Division

PARTIES: APPLICANTS
Luigi De Luca
Gavina de Luca
RESPONDENTS
Francesco Scuccimarra
Rosa Scuccimarra

FILE NUMBER: 055162

HEARING DATES: 6 November 2006
15 December 2006

SUBMISSIONS CLOSED: 15 December 2006

DATE OF DECISION:
22 March 2007

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

CATCHWORDS: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for the doing of work or provision of services - Damages - Interest - Unconscionability

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Real Property Act 1900

CASES CITED: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
G & M Dawson Pty Ltd v Cripps & Ors (No 3) [2005] NSWADTAP 24
G & M Dawson Pty Ltd v Cripps & Ors [2004] NSWADTAP 38Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145Mattana Coiffure Pty Ltd v Sotiropoulos (No 2) [2004] NSWADT 80
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

REPRESENTATION:
APPLICANTS
S Taylor, barrister
RESPONDENTS
R Czinner, solicitor

ORDERS: 1. The Respondents are jointly and severally liable to the Applicants in the amount of $60,645.17, comprising a principal sum of $52,146.50 and interest totalling $8,499.17; 2. The Respondents are to arrange at their expense for the tiles on the floor of Suite C, 106 Norton Street, Leichhardt to be replaced, within six weeks of the date of this decision, by one or more appropriately qualified tradespeople, in a manner that will render the premises reasonably fit for the gelataria business currently conducted in those premises by the Applicants; 3. Both parties have liberty to apply for variation of Order 2, but only on the ground that compliance with its terms is not practicable and the parties cannot reach agreement on any appropriate variation. Any such application must be filed and served, with supporting submissions, within 14 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 7 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997; 4. It is declared that under the lease between the parties executed on 31 December 2004, the monthly rent of $4,333.33 required to be paid by the Applicants to the Respondents is inclusive of Goods and Services Tax payable at the rate of 10%; 5. Any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the…

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: [2007] NSWADT 63
Decision Date: 22 March 2007

CaseChat Overview and Summary

The case before the court involves a dispute between the Applicants, De Luca & Anor, and the Respondents, Scuccimarra & Anor, regarding compensation for pre-lease misrepresentations, a declaration of rights and obligations under a lease, and a claim for the doing of work or provision of services. The Applicants sought damages and interest for the Respondents' alleged misrepresentations made prior to the lease agreement, which they claim induced them to enter into the lease. Additionally, the Applicants sought a declaration of rights and obligations under the lease, specifically regarding the monthly rent, and an order for the Respondents to replace the tiles in the leased premises.

The court was required to determine whether the Respondents made misrepresentations that induced the Applicants to enter into the lease, and if so, whether the Applicants were entitled to compensation. The court also needed to interpret the terms of the lease, particularly regarding the inclusion of Goods and Services Tax in the monthly rent. Furthermore, the court had to assess whether the Respondents were liable to replace the tiles in the leased premises, as claimed by the Applicants.

The court found that the Respondents made misrepresentations that induced the Applicants to enter into the lease, and as such, the Applicants were entitled to compensation in the amount of $52,146.50, plus interest totalling $8,499.17. The court also found that the monthly rent under the lease was inclusive of Goods and Services Tax at the rate of 10%. Additionally, the court ordered the Respondents to replace the tiles in the leased premises within six weeks, at their expense, in a manner that would render the premises reasonably fit for the Applicants' gelataria business. The court further declared that any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision, and that the matter will be resolved 'on the papers' unless reasons are advanced for a hearing to be conducted.

The court ordered that the Respondents are jointly and severally liable to the Applicants in the amount of $60,645.17, comprising a principal sum of $52,146.50 and interest totalling $8,499.17. The Respondents are to arrange at their expense for the tiles on the floor of Suite C, 106 Norton Street, Leichhardt to be replaced, within six weeks of the date of this decision. It is declared that under the lease between the parties executed on 31 December 2004, the monthly rent of $4,333.33 required to be paid by the Applicants to the Respondents is inclusive of Goods and Services Tax payable at the rate of 10%. Any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision.

Orders

Orders of the court

1. The Respondents are jointly and severally liable to the Applicants in the amount of $60,645.17, comprising a principal sum of $52,146.50 and interest totalling $8,499.17; 2. The Respondents are to arrange at their expense for the tiles on the floor of Suite C, 106 Norton Street, Leichhardt to be replaced, within six weeks of the date of this decision, by one or more appropriately qualified tradespeople, in a manner that will render the premises reasonably fit for the gelataria business currently conducted in those premises by the Applicants; 3. Both parties have liberty to apply for variation of Order 2, but only on the ground that compliance with its terms is not practicable and the parties cannot reach agreement on any appropriate variation. Any such application must be filed and served, with supporting submissions, within 14 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 7 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved `on the papers', pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997; 4. It is declared that under the lease between the parties executed on 31 December 2004, the monthly rent of $4,333.33 required to be paid by the Applicants to the Respondents is inclusive of Goods and Services Tax payable at the rate of 10%; 5. Any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved `on the papers'.

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:	De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Luigi De Luca Gavina de Luca RESPONDENTS Francesco Scuccimarra Rosa Scuccimarra
FILE NUMBER:	055162
HEARING DATES:	6 November 2006 15 December 2006
SUBMISSIONS CLOSED:	15 December 2006
DATE OF DECISION:	22 March 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Fairweather R - (Advisory) Non Judicial Member ; Tyler T - Non Judicial Member
CATCHWORDS:	Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for the doing of work or provision of services - Damages - Interest - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Real Property Act 1900
CASES CITED:	Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 G & M Dawson Pty Ltd v Cripps & Ors (No 3) [2005] NSWADTAP 24 G & M Dawson Pty Ltd v Cripps & Ors [2004] NSWADTAP 38Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145Mattana Coiffure Pty Ltd v Sotiropoulos (No 2) [2004] NSWADT 80 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
REPRESENTATION:	APPLICANTS S Taylor, barrister RESPONDENTS R Czinner, solicitor
ORDERS:	1. The Respondents are jointly and severally liable to the Applicants in the amount of $60,645.17, comprising a principal sum of $52,146.50 and interest totalling $8,499.17; 2. The Respondents are to arrange at their expense for the tiles on the floor of Suite C, 106 Norton Street, Leichhardt to be replaced, within six weeks of the date of this decision, by one or more appropriately qualified tradespeople, in a manner that will render the premises reasonably fit for the gelataria business currently conducted in those premises by the Applicants; 3. Both parties have liberty to apply for variation of Order 2, but only on the ground that compliance with its terms is not practicable and the parties cannot reach agreement on any appropriate variation. Any such application must be filed and served, with supporting submissions, within 14 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 7 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997; 4. It is declared that under the lease between the parties executed on 31 December 2004, the monthly rent of $4,333.33 required to be paid by the Applicants to the Respondents is inclusive of Goods and Services Tax payable at the rate of 10%; 5. Any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the…