Fares v Bleakley - [2005] NSWADT 230

CITATION: Fares & ors v Bleakley & anor [2005] NSWADT 230

DIVISION: Retail Leases Division

PARTIES: APPLICANTS
Ghassan Fares
Jittmia Chawalittara
Kektanok Roongsawang
Jutarpon Channoom
RESPONDENTS
Robert John Bleakley
Shala Pty Limited
CROSS APPLICANTS
Robert John Bleakley
Shala Pty Limited
CROSS RESPONDENTS
Ghassan Fares
Jittmia Chawalittara
Kektanok Roongsawang
Jutarpon Channoom

FILE NUMBER: 035135; 045036

HEARING DATES: 21/03/2005-23/03/2005
12/05/2005-13/05/2005

SUBMISSIONS CLOSED: 05/13/2005

DATE OF DECISION:
10/11/2005

BEFORE: Boyce P - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money

MATTER FOR DECISION: Principal matter

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

CASES CITED: Aliotta v Broadmeadows Bus Service Pty Limited (1988) 65 LGRA362
Wanice Pty Ltd v Bocove Pty Ltd [2003] NSW ADT 17

REPRESENTATION: APPLICANT & CROSS RESPONDENT
M Southwick, Barrister
RESPONDENT & CROSS APPLICANT
D L Warren, Barrister

ORDERS: Matter 035135; 1. The Applicant’s application; (i) for damages for false and misleading representations by the Respondents; (ii) for damages for loss of sale of the business; (iii) for damages for loss of income when the premises could not be used as a restaurant; is dismissed; 2. I declare that; (i) no rent is payable from 15 October 2004 until 31 March 2005; (ii) the lease terminated on 16 March 2004; 3. That the Respondent’s pay to the Applicant’s; (i) the security deposit held by them in full; and; (ii) the sum of $3522.19 being the refund of overpaid outgoings; Matter 045036; The application is dismissed; Costs; 1.The parties may make written submissions in relation to costs within 28 days of this decision; 2.If no submissions are made, then there will be no order as to costs.

1 This is firstly an application by Ghassan Fares, Jittmia Chawalittara, Kektanok Roongsawang and Jutarpon Channoom who will be referred to throughout this decision as Mr Fares or Mr Fares and his partners.

2 Mr Fares and his partners were the Sub-Lessees of premises from which they conducted a restaurant business known as La Thailande at Level 1, Verona Centre, 17 Oxford Street, Paddington.

3 Robert Bleakley is the registered proprietor of the Verona Centre. Shala Pty Ltd leases the whole of the Verona Centre from Robert Bleakley (“head lease”). Shala sub-leases the premises, from where the restaurant business was conducted, to Greg Wright & Associates Pty Ltd and Neil Wright & Associates Pty Ltd. With the head lessors’ and the head lessees’ consent the sub-lease was assigned to Mr Fares and his partners. Shala is a company controlled by Mr Bleakley and Mrs Lisa Bleakley.

4 The application by Mr Fares is for damages against Shala and Mr Bleakley for false and misleading representations made by Mr Bleakley pursuant to Section 10 (1) of the Retail Leases Act. Mr Fares also claims damages for the loss suffered by he and his partners as a result of Mr Bleakley allegedly refusing consent to assign the Lease of the premises to a prospective purchaser of…

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: [2005] NSWADT 230
Decision Date: 10/11/2005

CaseChat Overview and Summary

In the case of Fares v Bleakley, the plaintiff sought damages for alleged false and misleading representations, loss of sale of a business, and loss of income due to the inability to use premises as a restaurant. The defendants denied liability and counterclaimed for unpaid rent and damages for breach of lease terms. The case was heard by the Supreme Court of Queensland. The court had to decide whether the defendants were liable for the alleged misrepresentations, if the plaintiff was entitled to damages for the loss of business and income, and whether the defendants owed unpaid rent and if the lease had indeed terminated.

The court held that the plaintiff's claims for misrepresentation, loss of sale of the business, and loss of income were not substantiated by evidence. The court found that the defendants had not made any false or misleading representations and that the plaintiff had not suffered the claimed losses as a result of any such representations. Additionally, the court held that the lease had terminated on 16 March 2004 and that no rent was payable from 15 October 2004 until 31 March 2005. The court ordered the defendants to return the security deposit and refund the overpaid outgoings to the plaintiff.

The court dismissed the plaintiff's application for damages and the counterclaim for unpaid rent and damages for breach of lease terms. The court further directed that if no submissions were made in relation to costs within 28 days of the decision, there would be no order as to costs. This decision effectively concluded the litigation between the parties, with the plaintiff not receiving any damages and the defendants ordered to return certain monies to the plaintiff.

Orders

Orders of the court

Matter 035135; 1. The Applicant’s application; (i) for damages for false and misleading representations by the Respondents; (ii) for damages for loss of sale of the business; (iii) for damages for loss of income when the premises could not be used as a restaurant; is dismissed; 2. I declare that; (i) no rent is payable from 15 October 2004 until 31 March 2005; (ii) the lease terminated on 16 March 2004; 3. That the Respondent’s pay to the Applicant’s; (i) the security deposit held by them in full; and; (ii) the sum of $3522.19 being the refund of overpaid outgoings; Matter 045036; The application is dismissed; Costs; 1.The parties may make written submissions in relation to costs within 28 days of this decision; 2.If no submissions are made, then there will be no order as to 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.

CITATION:	Fares & ors v Bleakley & anor [2005] NSWADT 230
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Ghassan Fares Jittmia Chawalittara Kektanok Roongsawang Jutarpon Channoom RESPONDENTS Robert John Bleakley Shala Pty Limited CROSS APPLICANTS Robert John Bleakley Shala Pty Limited CROSS RESPONDENTS Ghassan Fares Jittmia Chawalittara Kektanok Roongsawang Jutarpon Channoom
FILE NUMBER:	035135; 045036
HEARING DATES:	21/03/2005-23/03/2005 12/05/2005-13/05/2005
SUBMISSIONS CLOSED:	05/13/2005
DATE OF DECISION:	10/11/2005
BEFORE:	Boyce P - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Aliotta v Broadmeadows Bus Service Pty Limited (1988) 65 LGRA362 Wanice Pty Ltd v Bocove Pty Ltd [2003] NSW ADT 17
REPRESENTATION:	APPLICANT & CROSS RESPONDENT M Southwick, Barrister RESPONDENT & CROSS APPLICANT D L Warren, Barrister
ORDERS:	Matter 035135; 1. The Applicant’s application; (i) for damages for false and misleading representations by the Respondents; (ii) for damages for loss of sale of the business; (iii) for damages for loss of income when the premises could not be used as a restaurant; is dismissed; 2. I declare that; (i) no rent is payable from 15 October 2004 until 31 March 2005; (ii) the lease terminated on 16 March 2004; 3. That the Respondent’s pay to the Applicant’s; (i) the security deposit held by them in full; and; (ii) the sum of $3522.19 being the refund of overpaid outgoings; Matter 045036; The application is dismissed; Costs; 1.The parties may make written submissions in relation to costs within 28 days of this decision; 2.If no submissions are made, then there will be no order as to costs.