Dong v West Services Pty Ltd

[2010] NSWADT 150

CITATION:	Dong v West Services Pty Ltd [2010] NSWADT 150
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Li Fang Dong RESPONDENT West Services Pty Ltd
FILE NUMBER:	105013
HEARING DATES:	9 March 2010
SUBMISSIONS CLOSED:	20 April 2010
DATE OF DECISION:	15 June 2010
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Formation of lease agreement
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Helou v Bong Bong Pty Ltd [2006] NSWADT128 Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Brambles Holdings Ltd v Bathurst City Council (2001) NSWLR 153 ABC v XIVth Commonwealth Games (1988) NSWLR 540 Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR at 11,117 Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) CLR 5 647 Carruthers v Whittaker [1975] NZLR 667 CA Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 631 Stephenson v Dwyer [2008] NSWCA 123 Masters v Cameron (1954) 91 CLR 253 Brogden v Metropolitan Railway Co (1876-77) 2 App Cas 666 Agusta Pty Ltd v Perpetual Trustee Company Ltd [2010] NSWCA 110
REPRESENTATION:	APPLICANT B C Kasep, barrister RESPONDENT A J Tudehope SC, barrister
ORDERS:	1.The application is dismissed 2.Unless either party files and serves written submissions as to costs within 14 days, there will be no order as to costs. If either party does file and serve written submissions within 14 days, the other party is to file and serve any written submissions as to costs within a further period of 14 days of service. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved “on the papers” pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

INTRODUCTION

1 In the original application filed in these proceedings the Applicant seeks a declaration that a valid retail lease agreement exists between her and the Respondent in relation to premises at 15 Rooty Hill Road North, Rooty Hill NSW (“the premises”). The Applicant also seeks damages based upon claimed loss of income caused by the Respondent’s having taken possession of the premises on or about 12 January 2010.

2 Additionally, on 3 February 2010, the Applicant filed an urgent interim application seeking orders restoring possession of the premises to her. This urgent application was heard by Judicial Member Molloy on 11 February 2010, following which orders were made restoring the Applicant to possession of the premises but requiring the Applicant to pay a monthly occupation fee pending determination of the original application.

BACKGROUND

3 On 22 December 2006 the Respondent entered into a retail lease agreement in respect of the premises with Mr Yong Jia Jiang (“Jiang”). The term of the lease was from 1 December 2006 to 30 November 2009. Clause 20 of the agreement permitted Jiang to hold over after the…