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Fathullah v Varma (RLD)

Fathullah v Varma (RLD)

Case [2013] NSWADTAP 39 8 August 2013

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Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Fathullah v Varma (RLD) [2013] NSWADTAP 39
Hearing dates: 22 May 2013
Decision date: 08 August 2013
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
D Bluth, Judicial Member
M Foldi, Non-judicial Member
Decision:
1. (a) The appeal against the Tribunal's decision given on 15 November 2012 is allowed.
(b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $23,950.39, comprising $20,550 as principal and $3,400.39 as interest.'
2. (a) The appeal against the Tribunal's decision given on 23 January 2013 is allowed.
(b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $8,239 in respect of the costs of the proceedings.'
3. The Respondents are to pay to the Appellant the sum of $9,044 in respect of the costs of these appeal proceedings.

Catchwords: Retail lease - failure by lessor to grant possession - assessment of damages payable to lessee - costs
Legislation Cited: Administrative Decisions Tribunal Act 1997
Business Names Registration Act 2011 (Cth)
Legal Profession Act 2004
Local Court, Practice Note Civ 1
Retail Leases Act 1994
Suitors' Fund Act 1951
Cases Cited: ACN 079 830 596 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fishermen's Co-operative Ltd [2007] NSWADT 297
Ali v Nationwide News Ltd [2008] NSWCA 183
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD) [2012] NSWADTAP 26
Building Professionals Board v Hans (GD) [2008] NSWADTAP 13
Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64
Coogee Bay Village Pty Ltd v Profilio (No 2) (RLD) [2011] NSWADTAP 67
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Fathullah v Varma [2012] NSWADT 237
Fathullah v Varma (No 2) [2013] NSWADT 13
G & M Dawson Pty Ltd v Cripps & Ors (RLD) [2004] NSWADTAP 38
Hull v Thompson [2001] NSWCA 359
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
O'Neill v Henry (RLD) [2010] NSWADTAP 40
Sarker and anor v World Best Holdings Limited and anor [2008] NSWADT 75
Torchia v Swanton (RLD) [2012] NSWADTAP 5
Trowbridge v Morris (RLD) [2010] NSWADTAP 70
Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31
World Best Holdings Limited v Sarker [2010] NSWCA 24
Category: Principal judgment
Parties: Nihad Fathullah (Appellant)
Arun Deo Varma (First Respondent)
Kamlush Deo Varma (Second Respondent)
Aranesh Deo Varma (Third Respondent)
Representation: H Soltan (Agent for Appellant)
A D Varma (In person, and as agent for Second and Third Respondents)

File Number(s): 129040, 139006
Decision under appeal

Citation:

Fathullah v Varma [2012] NSWADT 237
Fathullah…

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.

Continue reading Fathullah v Varma (RLD)

Details

AGLC: Fathullah v Varma (RLD) [2013] NSWADTAP 39
Case: [2013] NSWADTAP 39
Decision Date: 08 August 2013

CaseChat Overview and Summary

Fathullah, the appellant, brought an appeal against the respondents, Varma, following a decision made by the Retail Leases Tribunal. The crux of the dispute revolves around the failure of the respondents to grant possession of a retail lease to the appellant, leading to the assessment of damages and costs. The case was heard in the Supreme Court of New South Wales.

The central legal issues the court had to address were the appropriate amount of damages payable to the appellant for the respondents' failure to grant possession and the allocation of costs for both the initial proceedings before the Tribunal and the subsequent appeal. The court had to determine whether the damages awarded by the Tribunal were fair and whether the costs incurred during the appeal were justified.

The court found that the initial damages awarded by the Tribunal were inadequate and did not reflect the true extent of the loss suffered by the appellant. The court recalculated the damages, taking into account the lost profits and other relevant factors, and determined that the respondents should pay the appellant $23,950.39 in principal and interest. Additionally, the court found that the respondents were liable for the costs of the proceedings before the Tribunal, amounting to $8,239, and the costs of the appeal, which totalled $9,044. The court held that the respondents were responsible for these costs as they had not acted reasonably in their dealings with the appellant.

In conclusion, the court allowed the appellant's appeal and set aside the decisions of the Tribunal, ordering the respondents to pay the appellant the recalculated damages and costs. The respondents were also ordered to cover the costs of the appeal proceedings.

Orders

Orders of the court

1. (a) The appeal against the Tribunal's decision given on 15 November 2012 is allowed.

(b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $23,950.39, comprising $20,550 as principal and $3,400.39 as interest.'

2. (a) The appeal against the Tribunal's decision given on 23 January 2013 is allowed.

(b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $8,239 in respect of the costs of the proceedings.'

3. The Respondents are to pay to the Appellant the sum of $9,044 in respect of the costs of these appeal proceedings.

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.

Citations

AGLC Citation

Fathullah v Varma (RLD) [2013] NSWADTAP 39

Most Recent Citation

City Convenience Leasing Pty Limited v Boo [2015] NSWSC 1271

Cases citing this decision · 1 of 1 shown

City Convenience Leasing Pty Limited v Boo
[2015] NSWSC 1271

…tive Decisions Tribunal Act 1997 ("the ADT'). We also refer you to a recent decision by the Appeal Panel of the Tribunal in Fathullah v Varma (RLD) [2013] NSWADTAP 39 where our firm acted successfully in two joint appeal [sic] at [143]-[152]. In that passage the Appeal Panel confirmed that "costs" within s.88 of the…

View all 1 citing cases →

Cases cited in this decision · 30 of 30 shown

Fathullah v Varma (No.2)
[2013] NSWADT 13 Para 1

…In the second, Fathullah v Varma (No 2) [2013] NSWADT 13 ('the costs decision'), the Tribunal rejected an application by Mr Fathullah for the costs of the proceedings and ordered that the parties should bear their own costs. The Tribunal arrived at this decision 'on the papers', i.e., without a hearing. It took int…
Fathullah v Varma
[2012] NSWADT 237 Para 1

…In the first of them, Fathullah v Varma [2012] NSWADT 237 ('the principal decision'), the Tribunal held that the Applicant, Nihad Fathullah, was entitled to recover damages totalling $9,658.38 (which included a sum of $646.38 on account of interest) from the Respondents, Arun Deo Varma (hereafter 'Mr Varma') , Kamlu…
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD)
[2012] NSWADTAP 26 Para 1

…he Tribunal pointed out also that according to the Appeal Panel's decision in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD) [2012] NSWADTAP 26, the Tribunal may award costs to a successful party who was represented by an agent who was not an Australian legal practitioner.…
Torchia v Swanton (RLD)
[2012] NSWADTAP 5 Para 1

…In so concluding, we have taken careful account of the following passage in a case, Torchia v Swanton (RLD) [2012] NSWADTAP 5, to which we drew the parties' attention at the hearing. The relevant passage in the Appeal Panel's reasons is at [113 - 123]:-…
Coogee Bay Village v Profilio (RLD)
[2011] NSWADTAP 67 Para 1

…Respondent a certificate under the Suitors' Fund Act 1951. He pointed out that the Appeal Panel in Coogee Bay Village Pty Ltd v Profilio (No 2) (RLD) [2011] NSWADTAP 67 granted such a certificate (at [17]) in comparable circumstances.…
Perpetual Trustee Company Limited v Varma
[2011] NSWSC 1322 Para 1

…er the Tribunal hearing. Accompanying those submissions was a copy of a Supreme Court judgment, reported as Perpetual Trustee Company Limited v Varma [2011] NSWSC 1322. This revealed that on 21 October 2011 the Court had dismissed a Notice of Motion that the Respondents had filed, seeking orders (a) setting aside a…
Trowbridge v Morris (RLD)
[2010] NSWADTAP 70 Para 1

…s agreed or assessed'. As he pointed out, the Appeal Panel, hearing an appeal from the Retail Leases Division, said this in Trowbridge v Morris (RLD) [2010] NSWADTAP 70 at [33]:-…
O'Neill v Henry (RLD)
[2010] NSWADTAP 40 Para 1

…In support of these submissions, Mr Soltan cited the Appeal Panel's decision in O'Neill v Henry (RLD) [2010] NSWADTAP 40. In this case, a sublessee of retail shop premises (Mr O'Neill) who had been locked out of them unlawfully by the sublessor (Mr Henry) claimed damages representing (amongst other things) the cost o…
World Best Holdings Ltd v Sarker
[2010] NSWCA 24 Para 1

…his passage was adopted and applied (see [236 - 248]). The Court of Appeal endorsed the Tribunal's approach: see World Best Holdings Limited v Sarker [2010] NSWCA 24 at [74 - 82].…
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5)
[2010] NSWADTAP 21 Para 1

…In B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21, the Appeal Panel held that the Appellants, who had engaged a firm of accountants (Byrons) to act on their behalf in proceedings against the Chief Commissioner of State Revenue and had been substantially successful, could ob…
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD)
[2010] NSWADTAP 3 Para 1

…are satisfied that there was a 'substantial disparity' (to repeat the phrase used in this context in Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [47]) between the relative strengths of the parties' cases in the appeal against the principal decision and that this provides good grounds under…
Ali v Nationwide News Pty Ltd
[2008] NSWCA 183 Para 1

…y other evidence or is inherently illogical or improbable. He referred here to Hull v Thompson [2001] NSWCA 359 at [21] and Ali v Nationwide News Ltd [2008] NSWCA 183 at [112].…
Legal Services Commissioner v Galitsky (No.2)
[2008] NSWADT 153 Para 23

…ing it as 'clumsy'. He drew our attention to a dictum of the Legal Services Division of the Tribunal in Legal Services Commissioner v Galitsky (No 2) [2008] NSWADT 153 at [23], to the effect that the Tribunal should not adopt the role of a costs assessor because it does not possess any expertise or experience in det…
Building Professionals Board v Hans
[2008] NSWADTAP 13 Para 1

…g regard to the material then before it' (see ADT Act, section 115(1) and the discussion of these matters in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13).…
Sarker and anor v World Best Holdings Limited and anor (No 4)
[2008] NSWADT 75 Para 1

…In a case decided in the Tribunal under the RL Act, Sarker and anor v World Best Holdings Limited and anor [2008] NSWADT 75, this passage was adopted and applied (see [236 - 248]). The Court of Appeal endorsed the Tribunal's approach: see World Best Holdings Limited v Sarker [2010] NSWCA 24 at [74 - 82].…
ACN 079 830 596 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fisherman's Co-operative Ltd
[2007] NSWADT 297 Para 1

…on a passage in the Tribunal's decision in ACN 079 830 596 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fishermen's Co-operative Ltd [2007] NSWADT 297.…
Uszok v Henley Properties (NSW) Pty Ltd
[2007] NSWCA 31 Para 1

…ies, he cited Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 at [31] and Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [134 - 136].…
Cripps v G & M Dawson Pty Ltd
[2006] NSWCA 81

…Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 Coogee Bay Village Pty Ltd v Profilio (No 2) (RLD) [2011] NSWADTAP 67 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Fathullah v Varma [2012] NSWADT 237 Fathullah v Varma (No 2) [2013] NSWADT 13 G & M Dawson Pty Ltd v Cripps & Ors (RLD) [2004] NSWADTAP 38 Hull v Tho…
G & M Dawson Pty Limited v Cripps & Ors (RLD)
[2004] NSWADTAP 38 Para 1

…t, but failed to do so. In this connection, he relied on the fact that at paragraph [60] of its decision in G & M Dawson Pty Ltd v Cripps & Ors (RLD) [2004] NSWADTAP 38, the Appeal Panel appeared to accept a proposition that counsel for the appellant had put to it, to the effect that 'a fraudulent defendant was liabl…
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd
[2003] HCA 10

…to adduce evidence that might have assisted the Tribunal in its task: see further, Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) [2003] HCA 10, (2003) 77 ALJR 768 at [38] per Hayne J.…
Hull v Thompson
[2001] NSWCA 359 Para 1

…ma facie be accepted, unless it has been contradicted by other evidence or is inherently illogical or improbable. He referred here to Hull v Thompson [2001] NSWCA 359 at [21] and Ali v Nationwide News Ltd [2008] NSWCA 183 at [112].…
Commonwealth Bank of Australia v Hattersley
[2001] NSWSC 60

…ter amount is the greater, the 'indemnity principle' to which Davies A-J referred in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60... may be applicable.…
Karacominakis v Big Country Developments Pty Ltd
[2000] NSWCA 313 Para 1

…The following passage in the judgment of Giles JA in Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at 187 makes these points clear:-…
Commonwealth v Amann Aviation Pty Ltd
[1991] HCA 54

…that he has fulfilled his so-called duty, and the onus is on the defendant to show that he has not and the extent to which he has not ( TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130). Since the defendant is a wrongdoer, in determining whether the plaintiff has acted unreasonably a high standard of conduct will not be…
Jones v Schiffmann
[1971] HCA 52

…is no bar to recovery. As to the last point, the submissions refer to Turner, Australian Commercial Law (23rd ed), 203 which cites Jones v Schiffman [1971] HCA 52; (1971) 124 CLR 303 at 308 per Menzies J; Chaplin v Hicks [1911] 2 KB 796; and Howe v Teefy (1927) 27 SR (NSW) 301.…
McRae v Commonwealth Disposals Commission
[1951] HCA 79

…n. It was not 'wasted expenditure' in the way identified by cases such as Amann Aviation and McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377.…
Fink v Fink
[1946] HCA 54

…123 The Tribunal must, in the end, make the best assessment of all the evidence before it: Fink v Fink (1946) 74 CLR 127 at 143; Biggin & Co v Permanite Ltd [1951] 1 KB 422; and recently, Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 per Beazley JA at [135]-[137]. The evidence in this case, in my opinion,…
[1951] 1 KB 422
[1951] 1 KB 422

…Tribunal must, in the end, make the best assessment of all the evidence before it: Fink v Fink (1946) 74 CLR 127 at 143; Biggin & Co v Permanite Ltd [1951] 1 KB 422; and recently, Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 per Beazley JA at [135]-[137]. The evidence in this case, in my opinion, is ad…
Banco de Portugal v Waterlow & Sons Ltd
(1932) AC 452

…nt can suggest other and more beneficial conduct if it was reasonable for the plaintiff to do what he did ( Banco de Portugal v Waterlow and Sons Ltd (1932) AC 452; Pilkington v Wood (1953) Ch 770; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5).…
[1911] 2 KB 796
[1911] 2 KB 796

…urner, Australian Commercial Law (23rd ed), 203 which cites Jones v Schiffman [1971] HCA 52; (1971) 124 CLR 303 at 308 per Menzies J; Chaplin v Hicks [1911] 2 KB 796; and Howe v Teefy (1927) 27 SR (NSW) 301.…

Legislation cited in this decision · 5

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 1)
Business Names Registration Act 2011 (Cth)
1 mention (from Para 1)
Legal Profession Act 2004 (Vic)
1 mention (from Para 1)
Retail Leases Act 1994 (NSW)
1 mention (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Fathullah v Varma (RLD) [2013] NSWADTAP 39
Hearing dates:	22 May 2013
Decision date:	08 August 2013
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President D Bluth, Judicial Member M Foldi, Non-judicial Member
Decision:	1. (a) The appeal against the Tribunal's decision given on 15 November 2012 is allowed. (b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $23,950.39, comprising $20,550 as principal and $3,400.39 as interest.' 2. (a) The appeal against the Tribunal's decision given on 23 January 2013 is allowed. (b) The order made in that decision is set aside and the following order made: 'The Respondents are to pay to the Appellant the sum of $8,239 in respect of the costs of the proceedings.' 3. The Respondents are to pay to the Appellant the sum of $9,044 in respect of the costs of these appeal proceedings.
Catchwords:	Retail lease - failure by lessor to grant possession - assessment of damages payable to lessee - costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Business Names Registration Act 2011 (Cth) Legal Profession Act 2004 Local Court, Practice Note Civ 1 Retail Leases Act 1994 Suitors' Fund Act 1951
Cases Cited:	ACN 079 830 596 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fishermen's Co-operative Ltd [2007] NSWADT 297 Ali v Nationwide News Ltd [2008] NSWCA 183 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD) [2012] NSWADTAP 26 Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 Coogee Bay Village Pty Ltd v Profilio (No 2) (RLD) [2011] NSWADTAP 67 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Fathullah v Varma [2012] NSWADT 237 Fathullah v Varma (No 2) [2013] NSWADT 13 G & M Dawson Pty Ltd v Cripps & Ors (RLD) [2004] NSWADTAP 38 Hull v Thompson [2001] NSWCA 359 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 O'Neill v Henry (RLD) [2010] NSWADTAP 40 Sarker and anor v World Best Holdings Limited and anor [2008] NSWADT 75 Torchia v Swanton (RLD) [2012] NSWADTAP 5 Trowbridge v Morris (RLD) [2010] NSWADTAP 70 Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 World Best Holdings Limited v Sarker [2010] NSWCA 24
Category:	Principal judgment
Parties:	Nihad Fathullah (Appellant) Arun Deo Varma (First Respondent) Kamlush Deo Varma (Second Respondent) Aranesh Deo Varma (Third Respondent)
Representation:	H Soltan (Agent for Appellant) A D Varma (In person, and as agent for Second and Third Respondents)
File Number(s):	129040, 139006
Decision under appeal	Citation: Fathullah v Varma [2012] NSWADT 237 Fathullah…