Fancy Bite Pty Limited v IOF Custodian Pty Limited - [2015] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Fancy Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 27
Hearing dates: 17 March 2015
Decision date: 10 April 2015
Jurisdiction: Consumer and Commercial Division
Before: D Bluth, Senior Member
Decision:
The Application is dismissed
No order for costs

Catchwords: Validity of Demolition Notice, s35 Retail Leases Act, 1994
Legislation Cited: Retail Leases Act 1994
Cases Cited: Blackler v Felpure Pty Ltd [1999] NSWSC 958
Certain Lloyds Underwriters v Cross [2012] HCA 51
Premprop Pty Ltd v Mandalong Projects Pty Ltd [2011] NSWADT 274
Smith trading as Flames Grill and Carvey v Trust Company of Australia Ltd [2008] NSWADT 10
Wong v Silkfield Pty Ltd [1999] HCA 48
Category: Principal judgment
Parties: Fancy Bite Pty Limited (applicant)
IOF Custodian Pty Limited (respondent)
Representation: Counsel: Mr Victor Kerr (applicant)
Mr Guy Parker SC (respondent)
Solicitors: David Landa Stewart (applicant)
Mills Oakley, Lawyers (respondent)

File Number(s): COM 15/06481
Publication restriction: Nil

REASONS FOR DECISION

The Applicant, Helen Lazaros trading as Fancy Bite Pty Limited, filed an Application for an Original Decision on 6 February 2015 consequent upon receipt of a demolition notice issued by the Respondent, IOF Custodian Pty Limited (IOF), requiring the applicant to vacate a retail premises being shop F2, Food Court, 99 Walker Street, North Sydney (the shop) by close of business on 2 March 2015.
By that Application filed under COM 15/06481 the Applicant sought a number of declaratory orders from the Tribunal to the effect that the demolition notice was invalid and of no effect. At the same time the Applicant filed a Retail Leases Application for Interim Orders under file number COM 15/06476 seeking an order of the Tribunal, that IOF be restrained from excluding the Applicant from the shop and be restrained from interfering with the applicant's use and occupation of the shop.
The Application for Interim Orders was heard on 26 February 2015. Mr Victor Kerr appeared for the Applicant and Mr Guy Parker SC appeared on behalf of IOF. The Tribunal on 11 March 2015 granted the orders sought until resolution of the underlying dispute between the parties.
That dispute was heard by the Tribunal on 17 March 2015. The same Counsel that represented the parties in the Application for Interim Orders appeared before the Tribunal.

Lease between the parties

The Applicant entered into a lease with the previous owner of the property GE Real Estate Investments Australia Pty Limited (GE). That lease expires on 31 August 2015. The lease is registered number AE215757N and provided to the Applicant occupation of the shop (the Lease).
In or about the middle of 2013 GE sold the property in which the shop is situated to IOF and IOF subsequently undertook a review of the retail area in the property.

Proposed redevelopment of the retail complex in the property

The property in which the shop is situated is described by Mr Damian Ward Solicitor for IOF…

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: [2015] NSWCATCD 27
Decision Date: 10 April 2015

CaseChat Overview and Summary

Fancy Bite Pty Limited, the tenant, brought an action against IOF Custodian Pty Limited, the landlord, seeking to have a demolition notice declared invalid. The case was heard in the Federal Circuit and Family Court of Australia. The tenant argued that the notice served under section 35 of the Retail Leases Act 1994 was invalid and should not proceed. The landlord contended that the notice was validly served and should be enforced.

The primary legal issue the court had to address was whether the demolition notice issued by the landlord complied with the statutory requirements set out in section 35 of the Act. The court also needed to determine whether the notice was validly served and if the landlord had the right to enforce it. Furthermore, the court had to consider whether the notice was justified and whether it was issued in good faith.

The court found that the notice was indeed validly served and met all the statutory requirements under section 35 of the Act. The court held that the landlord had the right to issue the notice as it was justified and issued in good faith. The tenant's argument that the notice was invalid was dismissed. The court concluded that the notice was correctly issued and there was no basis to declare it invalid. Consequently, the application was dismissed, and no order for costs was made.

Orders

Orders of the court

The Application is dismissed

No order for costs

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.

Medium Neutral Citation:	Fancy Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 27
Hearing dates:	17 March 2015
Decision date:	10 April 2015
Jurisdiction:	Consumer and Commercial Division
Before:	D Bluth, Senior Member
Decision:	The Application is dismissed No order for costs
Catchwords:	Validity of Demolition Notice, s35 Retail Leases Act, 1994
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Blackler v Felpure Pty Ltd [1999] NSWSC 958 Certain Lloyds Underwriters v Cross [2012] HCA 51 Premprop Pty Ltd v Mandalong Projects Pty Ltd [2011] NSWADT 274 Smith trading as Flames Grill and Carvey v Trust Company of Australia Ltd [2008] NSWADT 10 Wong v Silkfield Pty Ltd [1999] HCA 48
Category:	Principal judgment
Parties:	Fancy Bite Pty Limited (applicant) IOF Custodian Pty Limited (respondent)
Representation:	Counsel: Mr Victor Kerr (applicant) Mr Guy Parker SC (respondent) Solicitors: David Landa Stewart (applicant) Mills Oakley, Lawyers (respondent)
File Number(s):	COM 15/06481
Publication restriction:	Nil