Evriparas Pty Ltd v ING Management Limited

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273

Hearing dates:

10 November 2011

Decision date:

18 November 2011

Jurisdiction:

Retail Leases Division

Before:

P H Molony, Judicial Member

Decision:

1. Application for urgent interim orders dismissed.

2. Application for original decision listed for direction on 8 December 2011 at 11.am.

3. Applicant to pay the Respondents costs of the day of the interim hearing only. Those costs, in default of agreement, are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261
Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd [1968] 118 CLR 618; [1968] HCA 1
Gizah Pty Ltd v AXA Trustees Limited [2001] NSW ADT 116
Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd [2002] NSWADTAP 40
Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130
Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56
Nam v Commonwealth Funds Management Limited [2002] NSWADT 80.

Category:

Interlocutory applications

Parties:

Evriparas Pty Ltd (Applicant)
ING Management Limited (Respondent)
The Trust Company Limited (Respondent)

Representation:

Counsel
A Vincent (Respondent)
AJL Legal (Applicant)
Norton Rose Australia (Respondent)

File Number(s):

115143

REASONS FOR DECISION

Introduction

1. [RETAIL LEASES DIVISION, P H Molony, Judicial Member.] The Applicant is the tenant of shop premises at 10-20 Bond Street, Sydney under Registered Lease AF633673M and the licensee under an associated licence concerning adjoining seating space at which it operates a business, Caf e Chicane . The Respondents are the landlords.

1. On 20 October 2011 the Applicant lodged an application for an original order in the Tribunal making a combined retail tenancy claim and an unconscionable conduct claim. At the same time the Applicant made an application seeking urgent interim orders pending the resolution of its application for an original order.

1. The application for an original order sought orders -

• Under section 72(1)(b) of the Retail Leases Act 1994 reducing the rent paid by the Applicant for a period of 12 months to $16,632.92 (per month) inclusive of GST.
• Under s 72(c)(iv) that the Respondents repair all damage caused by the renovations, continued renovations and tradesman and all reasonable costs incurred by the Applicant which were caused by the renovations, continued renovations and tradesman to the premises.
• Under s 72AA(a) that the Respondent pay the Applicant by way of compensation $200,000.00.
• Costs.
• Further and consequential orders.

1. The Applicant's grounds for those claims relevantly said -

" Ground 1

Particulars 1.1 At all times the Applicant was a Tenant of a Retail Lease with the First and Second Defendant for the Premises Shops 1 and 2 and Storage Area 2, 10-20 Bond Street, Sydney. (the Premises)

Particulars 1.2 The Applicant entered into a Retail Lease for the Premises on 4 December…