Ersoy v Bonzalie - [2010] NSWADT 2

CITATION: Ersoy v Bonzalie [2010] NSWADT 2

DIVISION: Retail Leases Division

PARTIES:
Applicant in 075149:
Aslihan Ersoy and Neslihan Ersoy
Respondent in 075149:
Eddie Bonzalie
Applicant in 085030:
Eddie Bonzalie
Respondent in 085030:
Aslihan Ersoy and Neslihan Ersoy

FILE NUMBER: 075149; 085030

HEARING DATES: 29 September, 30 September, 1 October, 1 December, 2 December and 3 December 2008, 19 February, 20 February and 17 April 2009

SUBMISSIONS CLOSED: 17 April 2009

DATE OF DECISION:
4 January 2010

BEFORE: Callaghan P, SC, Deputy President; Fagg N - Non-Judicial Member

CATCHWORDS: Lease documentation – common intention – credibility - rectification – termination notice

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Evidence Act 1995
Retail Leases Act 1994

CASES CITED: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424
Briginshaw v Briginshaw (1938) 60 CLR 336
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 149
Franklins Pty Ltd v Metcash Trading Pty Ltd [2009] NSWCA 407
Harris v Thallon (1926) 26 SR (NSW) 456

REPRESENTATION:
Representative for Ersoy:
M. Zammit of Counsel
Representative for Bonzalie:
G. Rich of Counsel – 29 September to 1 October 2008
E. Demir, Solicitor – 1 to 3 December 2008
In person – 19-20 February and 17 April 2009

ORDERS: 1. Declare that subject to Order 2 below, the current lease of the premises 195 Great Western Highway, Wentworth Falls, is constituted by document being stamped Lease bearing date 10/03/06 and marked Exhibit 3A in these proceedings.
2. Order that the said document be rectified by deleting from Item 4 (Option to Renew) on the first page hereof the symbols and figures “+5+5”.
3. Declare that the Termination Notice of Lease dated 8 August 2007 from Carters Law Firm to Ms Aslihan Ersoy was of no legal effect as such or otherwise.
4. Discharge as from the date of this Decision the interim order of this Tribunal made on 23 August 2007.
5. Reserve the issue of costs.
6. Dismiss all other claims.

REASONS FOR DECISION

Background

1 Mr Eddie Bonzalie, owns the freehold premises at 195 Great Western Highway, Wentworth Falls, on which there has been conducted for some years a business known as Mountain Pizza and Kebab or other variations of that name. Ms Aslihan Ersoy (“Aslihan”) and Ms Neslihan Ersoy (“Neslihan”) , are daughters of Mr Ali Ersoy. The Ersoy family bought the business and took a lease from Mr Bonzalie in respect of the premises in about March 2005 and the Ersoy family is still conducting the business. I will hereafter refer to the business and the premises as “the shop”. The subject proceedings relate to the tenancy of the shop. The disputes involved in the proceedings are extensive and intense. Significant issues in respect of the credibility of each of Mr Ersoy and Mr Bonzalie are involved.

Proceedings

2 The relief sought by Aslihan and Neslihan in proceedings 075149, being a combined retail tenancy claim and unconscionable…

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: [2010] NSWADT 2
Decision Date: 4 January 2010

CaseChat Overview and Summary

In Ersoy v Bonzalie, the applicant, Aslihan Ersoy, sought various orders relating to a commercial lease agreement for premises located at 195 Great Western Highway, Wentworth Falls. The applicant contested the validity of a termination notice of lease and sought rectification of the lease documentation. The respondent, Bonzalie, contested these claims. The matter was determined by the Civil and Administrative Tribunal of New South Wales.

The primary legal issues were whether the lease could be rectified to accurately reflect the parties' common intention, whether a termination notice was validly served, and if the interim order made by the Tribunal should be discharged. The court was required to consider the credibility of the parties' evidence and determine if the termination notice was of any legal effect.

In its decision, the Tribunal found that the lease documentation could be rectified to reflect the parties' common intention. The Tribunal noted that the evidence supported the conclusion that the termination notice was invalid due to an error in the lease documentation. The Tribunal further determined that the interim order made by the Tribunal on 23 August 2007 should be discharged. The Tribunal dismissed all other claims and reserved the issue of costs.

The Tribunal made several orders, including a declaration that the lease was constituted by a specific document, an order for rectification of the lease documentation, a declaration that the termination notice was of no legal effect, a discharge of the interim order, a reservation of the issue of costs, and a dismissal of all other claims.

Orders

Orders of the court

1. Declare that subject to Order 2 below, the current lease of the premises 195 Great Western Highway, Wentworth Falls, is constituted by document being stamped Lease bearing date 10/03/06 and marked Exhibit 3A in these proceedings.

2. Order that the said document be rectified by deleting from Item 4 (Option to Renew) on the first page hereof the symbols and figures “+5+5”.

3. Declare that the Termination Notice of Lease dated 8 August 2007 from Carters Law Firm to Ms Aslihan Ersoy was of no legal effect as such or otherwise.

4. Discharge as from the date of this Decision the interim order of this Tribunal made on 23 August 2007.

5. Reserve the issue of costs.

6. Dismiss all other claims.

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:	Ersoy v Bonzalie [2010] NSWADT 2
DIVISION:	Retail Leases Division
PARTIES:	Applicant in 075149: Aslihan Ersoy and Neslihan Ersoy Respondent in 075149: Eddie Bonzalie Applicant in 085030: Eddie Bonzalie Respondent in 085030: Aslihan Ersoy and Neslihan Ersoy
FILE NUMBER:	075149; 085030
HEARING DATES:	29 September, 30 September, 1 October, 1 December, 2 December and 3 December 2008, 19 February, 20 February and 17 April 2009
SUBMISSIONS CLOSED:	17 April 2009
DATE OF DECISION:	4 January 2010
BEFORE:	Callaghan P, SC, Deputy President; Fagg N - Non-Judicial Member
CATCHWORDS:	Lease documentation – common intention – credibility - rectification – termination notice
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Evidence Act 1995 Retail Leases Act 1994
CASES CITED:	Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424 Briginshaw v Briginshaw (1938) 60 CLR 336 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 149 Franklins Pty Ltd v Metcash Trading Pty Ltd [2009] NSWCA 407 Harris v Thallon (1926) 26 SR (NSW) 456
REPRESENTATION:	Representative for Ersoy: M. Zammit of Counsel Representative for Bonzalie: G. Rich of Counsel – 29 September to 1 October 2008 E. Demir, Solicitor – 1 to 3 December 2008 In person – 19-20 February and 17 April 2009
ORDERS:	1. Declare that subject to Order 2 below, the current lease of the premises 195 Great Western Highway, Wentworth Falls, is constituted by document being stamped Lease bearing date 10/03/06 and marked Exhibit 3A in these proceedings. 2. Order that the said document be rectified by deleting from Item 4 (Option to Renew) on the first page hereof the symbols and figures “+5+5”. 3. Declare that the Termination Notice of Lease dated 8 August 2007 from Carters Law Firm to Ms Aslihan Ersoy was of no legal effect as such or otherwise. 4. Discharge as from the date of this Decision the interim order of this Tribunal made on 23 August 2007. 5. Reserve the issue of costs. 6. Dismiss all other claims.