Fresko Caf* Pty Ltd v Bassil - [2009] NSWADT 77

CITATION: Fresko Café Pty Ltd v Bassil [2009] NSWADT 77

DIVISION: Retail Leases Division

PARTIES:
APPLICANT in 085067
Fresko Cafe Pty Ltd
RESPONDENT
Nouhad Bassil
APPLICANT in 085128
Nouhad Bassil
RESPONDENT
Fresko Cafe Pty Ltd

FILE NUMBER: 085067, 085218

HEARING DATES: 26, 27 November 2008
5 December 2008
13 February 2009

SUBMISSIONS CLOSED: 13 February 2009

DATE OF DECISION:
9 April 2009

BEFORE: Callaghan P, SC, Deputy President; Tyler T - Non-Judicial Member

CATCHWORDS: False or misleading representation – lessor’s disclosure statement – termination of lease – notice of alteration of building – bond money – unconscionable conduct

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

CASES CITED: AG v World Best Holdings Ltd [2005] 63 NSWLR 557
Andrews v Hogan (1952) 86 CLR 223
Poseidon v Adelaide Petroleum (1991) 105 ALR
25R v Marks ex parte ABCE & BLF (1981) 147 CLR 471

REPRESENTATION:
APPLICANT 085067
P Katsivardas, agent
RESPONDENT 085128
B Ralston, barrister
RESPONDENT 085067
B Ralston, barrister
APPLICANT 085128
P Katsivardas, agent

ORDERS: 085067 Application dismissed
085128 Declare that the lessor is entitled to be paid the current balance in respect of the security bond under the lease, namely, bond number 0446107-4.

REASONS FOR DECISION

Background

1 At 138 Beaconsfield Street, Revesby there had been for many years until May 2008, a small shop where there was conducted what could be described as, basically, a takeaway food business serving, in particular, the surrounding industrial area. The shop formed part of larger premises at that address which in recent years have been used as an auto-electrical business.

2 For the last three years of its existence, the shop business was run by Fresko Café Pty Ltd (“the Applicant”), the principals of which are Mr Pavlos Katsivardas and his partner, Ms Nicole Brillon. Mr Nouhad Bassil (“the Respondent”) purchased the property in 1999. A lease of the shop by the Respondent to the Applicant for a term of 3 years commencing on 1 August 2006 with an option to renew for a period of 3 years was entered into on or about 11 February 2008. The Applicant left the shop and abandoned the business in May 2008. The demise of the lease and the business and antecedent events are the subject of these proceedings.

Proceedings

3 Proceedings 085067 were instituted by Mr Katsivardas by way of Application for Original Decision filed as a combined retail tenancy claim and unconscionable conduct claim on 11 April 2008. At the same time there was filed an Application for an urgent interim order, framed by Mr Katsivardas in these terms:

“The landlord not to lock out our shop. The rent and outgoings payments to stop until we reach a Court decision.”

Mr Katsivardas expressed the grounds for that order thus:

“On September 2007 the landlord locked out our shop without any notice. The real estate office advised us that he is going to do it again. The landlord without the 2 months notice that he…

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: [2009] NSWADT 77
Decision Date: 9 April 2009

CaseChat Overview and Summary

Fresko Caf* Pty Ltd brought an action against Bassil, the lessor of the premises from which the plaintiff operated a café, claiming that the lessor had breached the terms of the lease by failing to disclose that the building was to be demolished. The plaintiff sought damages for breach of contract and claimed that the lessor had engaged in unconscionable conduct by not disclosing the impending demolition. The case was heard in the Federal Circuit Court. The primary legal issues the court needed to address were whether the lessor had breached the terms of the lease by failing to disclose the impending demolition and, if so, whether the plaintiff was entitled to any damages. The court also had to consider whether the lessor's conduct was unconscionable.

The court held that the lessor had breached the terms of the lease by failing to disclose that the building was to be demolished. The court found that the lessor had given a disclosure statement to the plaintiff which included a clause stating that there were no alterations to the building to be made during the term of the lease. However, the court found that this clause was misleading because it did not disclose that the building was to be demolished and rebuilt. The court held that the lessor's failure to disclose this information was a breach of the terms of the lease. The court also found that the lessor's conduct was not unconscionable. The court held that the lessor had acted in good faith and that the plaintiff had not suffered any loss as a result of the lessor's failure to disclose the impending demolition. The court dismissed the plaintiff's claim for damages and held that the lessor was entitled to be paid the balance of the security bond. The court declared that the lessor was entitled to be paid the current balance in respect of the security bond under the lease.

Orders

Orders of the court

085067 Application dismissed 085128 Declare that the lessor is entitled to be paid the current balance in respect of the security bond under the lease, namely, bond number 0446107-4.

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:	Fresko Café Pty Ltd v Bassil [2009] NSWADT 77
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT in 085067 Fresko Cafe Pty Ltd RESPONDENT Nouhad Bassil APPLICANT in 085128 Nouhad Bassil RESPONDENT Fresko Cafe Pty Ltd
FILE NUMBER:	085067, 085218
HEARING DATES:	26, 27 November 2008 5 December 2008 13 February 2009
SUBMISSIONS CLOSED:	13 February 2009
DATE OF DECISION:	9 April 2009
BEFORE:	Callaghan P, SC, Deputy President; Tyler T - Non-Judicial Member
CATCHWORDS:	False or misleading representation – lessor’s disclosure statement – termination of lease – notice of alteration of building – bond money – unconscionable conduct
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	AG v World Best Holdings Ltd [2005] 63 NSWLR 557 Andrews v Hogan (1952) 86 CLR 223 Poseidon v Adelaide Petroleum (1991) 105 ALR 25R v Marks ex parte ABCE & BLF (1981) 147 CLR 471
REPRESENTATION:	APPLICANT 085067 P Katsivardas, agent RESPONDENT 085128 B Ralston, barrister RESPONDENT 085067 B Ralston, barrister APPLICANT 085128 P Katsivardas, agent
ORDERS:	085067 Application dismissed 085128 Declare that the lessor is entitled to be paid the current balance in respect of the security bond under the lease, namely, bond number 0446107-4.