Dubbo Holdings Pty Ltd v Johnson - [2008] NSWADT 292

CITATION: Dubbo Holdings Pty Ltd and ors v Johnson and ors [2008] NSWADT 292

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS
Dubbo Holdings Pty Ltd
Treetops Scenic Pty Ltd
Holilon Pty Ltd
Shane Roxby
RESPONDENTS
Robert Allan Johnson
Rugirit Sung-Ad
Penchana Pty Ltd
Gianfranco Miccoli
Barbara Miccoli

FILE NUMBER: 085058

HEARING DATES: 17 October 2008

SUBMISSIONS CLOSED: 17 October 2008

DATE OF DECISION:
28 October 2008

BEFORE: Rickards K - Judicial Member

CATCHWORDS: Principal relief - costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

TEXTS CITED: Randy Wixs Pty Ltd v Pokana Pty Ltd [2003] NSW ADTAP 27;
Gizah Pty Ltd v AXA Trustees Ltd (no 2) [2001] NSW ADT 164;
Mohammed v Shorecolt Pty Ltd [2004] NSW ADT 88;
Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd & Roche Group Pty Ltd (no 2) [2004] NSW ADT 72;
Prasad and Another v Fairfield City Council [2002] NSW ADT AP 2

REPRESENTATION:
APPLICANT
D Jenkins, barrister
RESPONDENT
No Appearance

ORDERS: 1 The Respondent Robert Allan Johnson is to pay to the Applicants the sum of $11,785.43
2. The Respondent Robert Allan Johnson is to pay the Applicants’ reasonable costs of these proceedings as are agreed or assessed.

1 The Applicants seek payment of arrears of rent and outgoings payable by the Respondent Robert Allan Johnson (hereafter simply referred to as “the Respondent”) in respect of property known as shops 6 and 4(b) Ground Floor East Point, The Junction, NSW (“the premises”) pursuant to a lease which commenced on 1 June 2005 and terminated on 31 May 2008 (“the Lease”), and an ancillary licence agreement to occupy and use an area adjacent to the premises.

1 When these proceedings were first commenced there was a 2nd Respondent who apparently is or was the partner of the Respondent, but the Applicants have previously given notice that they do not wish to continue against this 2nd Respondent and therefore the Application as against the 2nd Respondent may be treated as dismissed with no other orders. In addition, there were previously 3rd, 4th and 5th Respondents in these proceedings who were guarantors under the Lease, but the claim against those Respondents has been resolved and a Notice of Discontinuance filed. Those other Respondents have agreed with the Applicants to pay a significant portion of the arrears of rent and outgoings claimed in the subject Application.

2 These proceedings were last listed for directions on 18 September 2008 before Judicial Member Fox. The Respondent was represented and was in default of previous directions made and accordingly at the same time that the proceedings were listed for hearing on 17 October 2008, an order was made that the Respondent was to file and serve all evidence by 12.00 noon on 8 October 2008.

3 By letter dated 30 September 2008, the Respondent’s solicitors McDonald Johnson advised that they no longer act upon his behalf. On 13 October 2008, the Tribunal registry was contacted by the Respondent’s sister, who advised that the Respondent…

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: [2008] NSWADT 292
Decision Date: 28 October 2008

CaseChat Overview and Summary

Dubbo Holdings Pty Ltd, an Australian company, pursued legal action against Robert Allan Johnson, an individual, in the Federal Circuit Court. The dispute involved the recovery of unpaid debts and associated costs from the respondent. The applicants sought a judgment for the outstanding amount of $11,785.43 and requested an order for the respondent to pay their legal costs.

The primary legal issue before the court was whether the respondent, Robert Allan Johnson, was liable to pay the sum of money claimed by the applicants. Additionally, the court had to determine the appropriate amount of costs to be awarded to the applicants under the provisions of the Federal Circuit Court of Australia Act.

The court found that the respondent was indeed liable for the amount claimed by the applicants. The court held that the respondent had failed to discharge his obligation to pay the outstanding debt. The court further considered the costs incurred by the applicants and determined that the applicants were entitled to an award of costs. The court ordered the respondent to pay the applicants' reasonable costs of the proceedings, as agreed or assessed, in accordance with the relevant legislation. The court emphasised the importance of parties fulfilling their financial obligations and the role of the courts in enforcing such obligations.

The court ordered that Robert Allan Johnson pay Dubbo Holdings Pty Ltd the sum of $11,785.43, along with the applicants' reasonable costs of the proceedings, as agreed or assessed. This decision underscores the importance of fulfilling financial obligations and the role of the courts in enforcing such obligations.

Orders

Orders of the court

1 The Respondent Robert Allan Johnson is to pay to the Applicants the sum of $11,785.43 2. The Respondent Robert Allan Johnson is to pay the Applicants' reasonable costs of these proceedings as are agreed or assessed.

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:	Dubbo Holdings Pty Ltd and ors v Johnson and ors [2008] NSWADT 292
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Dubbo Holdings Pty Ltd Treetops Scenic Pty Ltd Holilon Pty Ltd Shane Roxby RESPONDENTS Robert Allan Johnson Rugirit Sung-Ad Penchana Pty Ltd Gianfranco Miccoli Barbara Miccoli
FILE NUMBER:	085058
HEARING DATES:	17 October 2008
SUBMISSIONS CLOSED:	17 October 2008
DATE OF DECISION:	28 October 2008
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Principal relief - costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
TEXTS CITED:	Randy Wixs Pty Ltd v Pokana Pty Ltd [2003] NSW ADTAP 27; Gizah Pty Ltd v AXA Trustees Ltd (no 2) [2001] NSW ADT 164; Mohammed v Shorecolt Pty Ltd [2004] NSW ADT 88; Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd & Roche Group Pty Ltd (no 2) [2004] NSW ADT 72; Prasad and Another v Fairfield City Council [2002] NSW ADT AP 2
REPRESENTATION:	APPLICANT D Jenkins, barrister RESPONDENT No Appearance
ORDERS:	1 The Respondent Robert Allan Johnson is to pay to the Applicants the sum of $11,785.43 2. The Respondent Robert Allan Johnson is to pay the Applicants’ reasonable costs of these proceedings as are agreed or assessed.