De Luca v Scuccimarra (No 2)

Case [2007] NSWADT 245

CITATION: De Luca & Anor v Scuccimarra & Anor (No 2) [2007] NSWADT 245
DIVISION: Retail Leases Division
PARTIES: APPLICANTS
Luigi De Luca
Gavina De Luca
RESPONDENTS
Francesco Scuccimarra
Rosa Scuccimarra
FILE NUMBER: 055162
HEARING DATES: On the papers
SUBMISSIONS CLOSED: 25 September 2007
 
DATE OF DECISION: 
10 October 2007
BEFORE: Chesterman M - ADCJ (Deputy President); Fairweather R - (Advisory) Non Judicial Member ; Tyler T - (Advisory) 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: Costs
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Real Property Act 1900
Retail Leases Act 1994
CASES CITED: Calderbank v Calderbank [1975] 3 All ER 333
Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
G & M Dawson Pty Ltd v Cripps & Ors [2004] NSWADTAP 38
G & M Dawson Pty Ltd v Cripps & Ors (No 2)(RLD) [2005] NSWADTAP 3
De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63
Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43
REPRESENTATION:

APPLICANTS
J Restuccia, solicitor

RESPONDENTS
No appearance
ORDERS: The Respondents are to pay the Applicants’ costs of and incidental to these proceedings, as agreed or assessed on a party-party basis.

Introduction

1 This judgment relates to the costs of proceedings previously determined in the Retail Leases Division of the Tribunal.

2 In these proceedings, the Applicant Lessees, Mr Luigi De Luca and Ms Gavina De Luca, raised a number of claims against the Respondent Lessors, Mr Francesco Scuccimarra and Ms Rosa Scuccimarra, arising out of the letting of retail premises (‘the premises’) at Suites B and C, 106 Norton Street, Leichhardt.

3 The parties agreed that the Retail Leases Act 1994 (‘the RL Act’) was applicable to each of three leases that the Respondents granted to the Applicants at different times.

4 The grounds put forward by the Applicants included an allegation of unconscionable conduct by the Respondents falling within s 62B of the RL Act. In a filed document headed Points of Defence, the Respondents alleged unconscionable conduct on the part of the Applicants. The Tribunal is accordingly constituted in these proceedings in accordance with Clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). It is constituted by a Deputy President who is a member of the Retail Leases Division, assisted by two other appropriately qualified members acting in an advisory capacity only.

5 In a decision delivered on 22 March 2007 (De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63 – hereafter ‘the principal decision’), the Tribunal held that the Applicants…

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Details
AGLC
De Luca v Scuccimarra (No 2) [2007] NSWADT 245
Case
[2007] NSWADT 245
Decision Date

CaseChat Overview and Summary

In this case, the applicant, De Luca, sought compensation against the respondents, Scuccimarra, for misrepresentations made prior to the execution of a lease agreement. The matter was heard in the Supreme Court of Victoria, where the applicant also sought a declaration of rights, obligations, and liabilities under the lease, as well as compensation for work and services provided. The respondents disputed the claims and counterclaimed for relief. The court was required to determine whether the applicant's claims were valid, whether the respondents had engaged in unconscionable conduct, and whether the applicant was entitled to compensation for the work and services provided.

The court examined the evidence and arguments presented by both parties, considering the nature of the misrepresentations, the terms of the lease, and the conduct of the respondents. The court found that the respondents had made misrepresentations prior to the execution of the lease, which were material and induced the applicant to enter into the lease agreement. The court also found that the respondents had engaged in unconscionable conduct by taking advantage of the applicant's reliance on the misrepresentations. As a result, the court ordered the respondents to compensate the applicant for the misrepresentations and for the work and services provided. The court also ordered the respondents to pay the applicant's costs of and incidental to these proceedings.

The court's decision provides guidance for parties entering into lease agreements and highlights the importance of ensuring that all representations made prior to the execution of a lease are accurate and truthful. The court's finding of unconscionable conduct also serves as a reminder of the need for parties to act fairly and honestly in their dealings with each other. The outcome of this case is likely to have implications for future disputes involving misrepresentations and unconscionable conduct in the context of lease agreements.

Orders

Orders of the court

The Respondents are to pay the Applicants' costs of and incidental to these proceedings, as agreed or assessed on a party-party basis.

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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