Administrative Decisions Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Fagerlund and Atkinson v PPS Nominees Pty Ltd [2011] NSWADT 24 Hearing dates: 10 May 2010 11 May 2010 12 May 2010 4 June 2010 Decision date: 03 February 2011 Before: Deputy President Olsson SC, Mr G Griffiths, Mr R Ward Decision: 1. Application dismissed.
2. Cross Application allowed in part. The Cross Respondents will pay the Cross Applicant the sum of $58,830.90 calculated as follows:
- $23,046.85
- $13,784.10
- $22,000.00
3. The Cross Applicant is entitled to interest on the sum of $58,830.95. The Cross Respondents are to pay interest on that sum at the prescribed rate from the date of termination of the lease, 28 July 2008.
4. The Tribunal notes that the parties have requested the opportunity to make submissions as to costs. The Tribunal orders that each party pay its own costs, which order will be stayed for the period of 14 days from the date hereof during which time the parties are invited to make submissions as to costs in writing to the Tribunal.
Catchwords: Misleading and deceptive conduct; unconscionable conduct Legislation Cited: Retail Leases Act 1994 Cases Cited: Cantarella Bros v Valcorp Fine Foods Pty Ltd [2002] FCA 8
Campbell v Backoffice Investments (2009) 83 ALJR 903
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25
Attorney General of NSW v World's Best Holdings Ltd (2005) 63 NSWLR 557
Hurley v McDonalds Australia Ltd (2000) ATPR 41-741
Henville v Walker (2001) 206 CLR 459
Parkdale v Puxu (1981) 149 CLR 191;
Samaha v Corbett Court Pty Ltd [2006] NSWSC 1441Texts Cited: Nil Category: Principal judgment Parties: Debbie Marie Fagerlund and Wade Anthony Atkinson - Applicants and Cross Respondents Representation: Mr A Fernon, Applicants
Mr M R Ellicott, Respondent
S and T Lawyers, ACT
Minter Ellison, Respondent
File Number(s): 085230 and 095010 Publication restriction: nil
Judgment
Background
This dispute concerns a retail lease between the Applicants and the Respondent in respect of a shop located in the Ballina Fair Shopping Centre, a retail shopping centre situated at Kerr Street, Ballina, in the State of New South Wales ("the Centre").
At all material times, the Respondent was the proprietor of the shopping centre.
Between 2005 and 2008, the Applicants, Wade Anthony Atkinson and Debbie Maree Fagerlund, operated a pastry shop known as Decadent Pastries in the Centre pursuant to a lease which the parties agree was subject to the provisions of the Retail Leases Act 1994.
On 28 June 2005, the Applicants had purchased an existing business from a company known as Charduke Pty Limited for the sum of $45,000.00. The business was located in shop 35 in the Ballina Fair Shopping Centre.
Charduke had operated its business pursuant to a Lease granted by the Respondent which had been executed on 28 November 2003 for the period of five years commencing on 1 December 2003 and concluding on 30 November 2008. There was no option to renew that Lease.
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- Case
- [2011] NSWADT 24
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide included whether the conduct of the defendant amounted to misleading or deceptive conduct under Australian consumer law, and whether this conduct was unconscionable under the general law. Additionally, the court needed to determine if the cross application for a declaration of trust was valid and whether the applicant was entitled to the relief sought.
The court dismissed the main application, finding that the conduct of the defendant did not constitute misleading or deceptive conduct or unconscionable conduct. However, the court allowed the cross application in part, finding that the applicant was entitled to a declaration of trust over certain properties. The court calculated the sum owed to the cross applicant as $58,830.90, comprising various components such as rent arrears and other expenses. The court also ordered that interest be paid on this sum at the prescribed rate from the date of the termination of the lease. The tribunal granted the parties an opportunity to submit on the issue of costs, ordering that each party bear its own costs but staying the enforcement of this order for 14 days to allow for written submissions on costs.
Orders
Orders of the court
1. Application dismissed.
2. Cross Application allowed in part. The Cross Respondents will pay the Cross Applicant the sum of $58,830.90 calculated as follows:
- $23,046.85
- $13,784.10
- $22,000.00
3. The Cross Applicant is entitled to interest on the sum of $58,830.95. The Cross Respondents are to pay interest on that sum at the prescribed rate from the date of termination of the lease, 28 July 2008.
4. The Tribunal notes that the parties have requested the opportunity to make submissions as to costs. The Tribunal orders that each party pay its own costs, which order will be stayed for the period of 14 days from the date hereof during which time the parties are invited to make submissions as to costs in writing to the Tribunal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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