Fathullah v Varma

[2012] NSWADT 237

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Fathullah v Varma [2012] NSWADT 237

Hearing dates:

5 October 2012

Decision date:

15 November 2012

Jurisdiction:

Retail Leases Division

Before:

K Rickards, Judicial Member

Decision:

The Respondents are to pay to the Applicant the sum of $9,656.38.

There will be no order made in relation to costs unless the Applicant files and serve written submissions as to costs within 14 days of the date of these orders. If the Applicant files and serves written submissions as to costs within this period, the Respondents are to file and serve any written submissions in reply within a further period of 14 days, following which a decision will be made in relation to the costs of these proceedings based upon the papers filed, in accordance with the provisions of section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords:

Failure of Consideration; Compensation

Legislation Cited:

Retail Leases Act 1994; Administrative Decisions Tribunal Act 1997

Category:

Principal judgment

Parties:

Nihad Fathullah (Applicant)
Arun Deo Varma (First Respondent)
Kamlesh Deo Varma (Second Respondent)
Aronseh Deo Varma (Third Respondent)

Representation:

H Soltan (Applicant, agent)
Mr Varma (Respondent in person,agent)

File Number(s):

125118

REASONS FOR DECISION

Background

1. The Respondents were the owners of retail shop premises located at 241 Northumberland Street, Liverpool NSW ("the Premises").

1. The Applicant became aware that the Premises were available for lease. On 6 August 2011 he paid the sum of $3,700 into the trust account of the Respondents' agents PRD Nationwide Cabramatta. This payment is slightly less than the equivalent of the monthly rent figure apparently agreed between the parties.

1. The parties then engaged solicitors to act in relation to the proposed lease of the Premises. The legal firm Rams Family Lawyers acted on behalf of the Respondents and on 23 August 2011 forwarded disclosure documents, a retail tenancy guide and a drafted lease to the agents PRD Nationwide Cabramatta. The Lessor's Disclosure Statement prepared on behalf of the Respondents relevantly indicated that: the estimated hand over date for the Premises under the lease was to be 28 September 2011; the Premises were to be used as a mixed business and grocery store; the term of the lease was to be for a period of 3 years; the annual rent was to be $45,000 plus GST, and; there would be an initial three week rent free period.

1. This Disclosure Statement disclosed that there were ongoing legal proceedings relevant to the Premises and that the Respondents had a "challenge to mortgagee's default enforcement judgment in the Supreme Court".

1. The Supreme Court proceedings were again later referred to in a letter dated 26 October 2011 from the Respondents' solicitor to the Applicant's then solicitor Dr Mohammad Rashed. This letter also enclosed the Disclosure Statement signed by the Applicant, and set out that the Respondents required an executed lease agreement, an insurance certificate of currency for the Premises, a bank cheque for 3 months' rent, and a cheque for registration fees, but stated:

"The…