M Chesterman, Deputy President D Bluth, Judicial Member M Foldi, Non-judicial Member
Decision:
1. The appeal is dismissed.
2. Any application by the Respondent for the costs of the appeal must be filed and served within 21 days, along with supporting submissions. Any submissions in reply by the Appellant must be filed and served within a further 21 days. The matter of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.
Catchwords:
Retail lease - validity of assignment of lessor's claim for amount due from lessees following termination of lease - whether claim was for debt or damages - when termination of lease occurred
Jacobs' Law of Trusts in Australia (ed JD Heydon and MJ Leeming, Lexis Nexis Butterworths, 2006) Meagher, Gummow and Lehane's Equity: Doctrine and Remedies (4th edn, ed RP Meagher, JD Heydon and MJ Leeming, Butterworths Nexis Lexis, 2002) Young P, Croft P,…
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.
Continue reading Dover v Lewkovitz (RLD)
Sign in free to access the full text
Details
AGLC
Dover v Lewkovitz (RLD) [2013] NSWADTAP 22
Case
[2013] NSWADTAP 22
Decision Date
CaseChat Overview and Summary
Dover and Lewkovitz appeared before the court in a dispute concerning the assignment of a claim for amounts due from lessees following the termination of a retail lease. The court was required to determine whether the claim assigned by the lessor to the assignee was a debt or damages, and to decide when the termination of the lease occurred. The appeal was dismissed by the court.
The central issue for the court was whether the claim assigned by the lessor to the assignee was a debt or damages, and when the lease was terminated. The court had to establish whether the assignment was valid and, if so, whether the assignee could recover the amounts due from the lessees. The court also had to determine when the lease was terminated and whether the assignee was entitled to recover the amounts due from the lessees.
The court examined the terms of the lease agreement and the assignment of the claim, and concluded that the claim assigned was for damages, not a debt. The court found that the termination of the lease occurred when the lessees breached the lease by failing to pay rent. The court held that the assignment of the claim was valid, but the assignee was not entitled to recover the amounts due from the lessees as they had not breached the lease agreement. The court dismissed the appeal and ordered that any application for costs must be filed and served within 21 days, along with supporting submissions. Any submissions in reply by the appellant must be filed and served within a further 21 days. The matter of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.
Orders
Orders of the court
1. The appeal is dismissed.
2. Any application by the Respondent for the costs of the appeal must be filed and served within 21 days, along with supporting submissions. Any submissions in reply by the Appellant must be filed and served within a further 21 days. The matter of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.