Duarte and Ors v Mitchell and Ors - [2007] NSWADT 276

CITATION: Duarte and ors v Mitchell and ors [2007] NSWADT 276

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS/CROSS RESPONDENTS
Carlos Duarte and Rita Duarte
RESPONDENTS/CROSS APPLICANTS
Steve Mitchell and Sandra Mitchell

FILE NUMBER: 075102; 075168

HEARING DATES: 29 August 2007, 10 September 2007 and 12 September 2007

SUBMISSIONS CLOSED: 26 September 2007

DATE OF DECISION:
28 November 2007

BEFORE: Chesterman M - ADCJ (Deputy President); Griffiths G - (Advisory) Non Judicial Member ; Ward R - (Advisory) Non Judicial Member

CATCHWORDS: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Costs - Damages - Unconscionability

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Environmental and Planning Assessment Act 1979
Retail Leases Act 1994

CASES CITED: Kindful (Australia) Pty Limited v Country Villa Holdings Pty Limited [2006] NSWADT 224
Perrin v Hungay Pty Ltd [2005] NSWADT 257
Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27

REPRESENTATION:
APPLICANTS/CROSS RESPONDENTS
L Paraska, solicitor
RESPONDENTS/CROSS APPLICANTS
N Confos, barrister

ORDERS: 1. It is declared that the lease between the parties, relating to retail shop premises at Shop B, 113 Queen Street, Campbelltown, was validly terminated by the Respondents/Cross Applicants on 11 May 2007; 2. The Applicants/Cross Respondents are jointly and severally liable to pay the sum of $6,864.00 to the Respondents/Cross Applicants; 3. The Applicants/Cross Respondents are to pay the Respondents/Cross Applicants’ costs of the directions hearing held on 9 August 2007, as agreed or assessed on a party/party basis; 4. The Application lodged on 15 June 2007 by the Applicants/Cross Respondents is dismissed.

Introduction

1 This case concerns disputes that arose between the lessors and the lessees under a registered lease of retail shop premises, principally on account of the premises being damaged by rain during the early months of 2007. The damage was serious enough to prompt the local authority to order the lessees to cease using them until specified repairs had been carried out, on the ground that their use would or might constitute a life-threatening hazard or a threat to public health or public safety. A major issue in contest between the parties was whether the repairs that were then carried out on the instructions of the lessors were adequate to permit the lessors to resume the conduct of their business.

2 The Lessors were the Respondents/Cross Applicants, Mr Steve Mitchell and Ms Sandra Mitchell. The Lessees were the Applicants/Cross Respondents, Mr Carlos Duarte and Ms Rita Duarte. The address of the shop (hereafter ‘the Premises’) was Shop B, 113 Queen Street, Campbelltown. They formed part of a building owned by the Lessors.

3 The Lease, which was governed by the Retail Leases Act 1994 (‘the RL Act’), was initially granted to a previous occupier of the Premises, Mr Alidad Rezaie. It ran from 1 March 2005 to 29 February 2008, with an option to renew for a further three years. The rent was expressed to be $3,813.34 per month, payable…

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.

Keep reading for free

Create a free CaseChat account to read Duarte and Ors v Mitchell and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWADT 276
Decision Date: 28 November 2007

CaseChat Overview and Summary

The case of Duarte and Others versus Mitchell and Others involved a dispute regarding the rights, obligations, and liabilities under a lease of a retail shop located at Shop B, 113 Queen Street, Campbelltown. The Applicants/Cross Respondents sought a declaration regarding the status of the lease, an order for payment of money, costs, and damages, while the Respondents/Cross Applicants contested the validity of the termination of the lease and sought a declaration of their rights under the lease agreement. The court was required to determine the validity of the termination of the lease by the Respondents/Cross Applicants and whether the Applicants/Cross Respondents were liable to pay any outstanding sums under the lease.

The court considered the terms of the lease agreement and the conduct of the parties to determine the validity of the termination of the lease. The Applicants/Cross Respondents argued that the termination of the lease was invalid and that they were not liable for any outstanding sums. However, the court found that the Respondents/Cross Applicants had validly terminated the lease on 11 May 2007, and that the Applicants/Cross Respondents were jointly and severally liable to pay the sum of $6,864.00. The court also dismissed the Application lodged by the Applicants/Cross Respondents on 15 June 2007.

The court ordered that the lease between the parties was validly terminated by the Respondents/Cross Applicants on 11 May 2007. The Applicants/Cross Respondents were ordered to pay the sum of $6,864.00 to the Respondents/Cross Applicants, as well as their costs of the directions hearing held on 9 August 2007. The Application lodged by the Applicants/Cross Respondents on 15 June 2007 was dismissed. The decision of the court provides clarity on the rights and obligations of the parties under the lease agreement and resolves the dispute between the parties.

Orders

Orders of the court

1. It is declared that the lease between the parties, relating to retail shop premises at Shop B, 113 Queen Street, Campbelltown, was validly terminated by the Respondents/Cross Applicants on 11 May 2007; 2. The Applicants/Cross Respondents are jointly and severally liable to pay the sum of $6,864.00 to the Respondents/Cross Applicants; 3. The Applicants/Cross Respondents are to pay the Respondents/Cross Applicants' costs of the directions hearing held on 9 August 2007, as agreed or assessed on a party/party basis; 4. The Application lodged on 15 June 2007 by the Applicants/Cross Respondents is dismissed.

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:	Duarte and ors v Mitchell and ors [2007] NSWADT 276
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS/CROSS RESPONDENTS Carlos Duarte and Rita Duarte RESPONDENTS/CROSS APPLICANTS Steve Mitchell and Sandra Mitchell
FILE NUMBER:	075102; 075168
HEARING DATES:	29 August 2007, 10 September 2007 and 12 September 2007
SUBMISSIONS CLOSED:	26 September 2007
DATE OF DECISION:	28 November 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Griffiths G - (Advisory) Non Judicial Member ; Ward R - (Advisory) Non Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Costs - Damages - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Environmental and Planning Assessment Act 1979 Retail Leases Act 1994
CASES CITED:	Kindful (Australia) Pty Limited v Country Villa Holdings Pty Limited [2006] NSWADT 224 Perrin v Hungay Pty Ltd [2005] NSWADT 257 Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27
REPRESENTATION:	APPLICANTS/CROSS RESPONDENTS L Paraska, solicitor RESPONDENTS/CROSS APPLICANTS N Confos, barrister
ORDERS:	1. It is declared that the lease between the parties, relating to retail shop premises at Shop B, 113 Queen Street, Campbelltown, was validly terminated by the Respondents/Cross Applicants on 11 May 2007; 2. The Applicants/Cross Respondents are jointly and severally liable to pay the sum of $6,864.00 to the Respondents/Cross Applicants; 3. The Applicants/Cross Respondents are to pay the Respondents/Cross Applicants’ costs of the directions hearing held on 9 August 2007, as agreed or assessed on a party/party basis; 4. The Application lodged on 15 June 2007 by the Applicants/Cross Respondents is dismissed.