Gani v Maiolo - [2012] NSWSC 1417

Supreme Court

New South Wales

Medium Neutral Citation: Gani v Maiolo [2012] NSWSC 1417
Hearing dates: 15 November 2012
Decision date: 27 November 2012
Jurisdiction: Civil
Before: Hall J
Decision:
(1) An order is made extending time for the commencement of proceedings.
(2) The Summons filed on 10 July 2012 is dismissed.
(3) Costs would normally follow the event. In the event that the plaintiff wishes to be heard on the question of costs, then written submissions on that question should be lodged with my associate within 14 days of the date of this judgment. If no submissions are lodged by that date then I order the plaintiff to pay the defendants' costs of the proceedings on the ordinary basis. The defendants are to file any submissions in reply to any submissions on costs within a further 14 days.
(4) Leave to either party to apply in respect of the form of orders.

Catchwords:
LEASES - Appeals from decision of Administrative Decisions Tribunal and decision of Appeal Panel under s 119 of the Administrative Decisions Tribunal Act 1997 - Tribunal proceedings commenced by lessee plaintiff who was locked out of defendant lessors' premises for failing to pay rent - parties in dispute as to commencement date of lease and length of the rent-free period - Tribunal rejected plaintiff's version of events and held that rent payable under written terms of lease in arrears - Tribunal also found in favour of defendants regarding other issues including: (i) plaintiff's claim various chattels not returned; whether same had been abandoned, (ii) liability for cost of a new awning; whether lessors liable, (iii) whether bond forfeited - Appeal Panel affirmed Tribunal's decision - no error on part of the Tribunal or Appeal Panel on a question of law.
COSTS - Appeal from decision of Administrative Decisions Tribunal Appeal Panel - Appeal Panel found plaintiff liable to pay the defendants' costs of proceedings - plaintiff failed to apply for leave to appeal decision and did not advance any grounds for the appeal in relation to costs - no demonstrable error as to fact or law identified regarding Appeal Panel's decision on costs - leave to appeal refused.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Cases Cited: Devries and anor v Australian Nation Railways Commission [1993] HCA 78; 177 CLR 472
Gani v Maiolo [2011] NSWADT 219
Gani v Maiolo [2012] NSWADTAP 10
Gani v Maiolo [2012] NSWADTAP 21
Toufic Laba Sarkis v Mahmoud Moussa [2011] NSWSC 1172
Category: Principal judgment
Parties: Mohammed Nurul Gani (Plaintiff)
Raffaele Maiolo (First defendant)
Maria Maiolo (Second Defendant)
Representation: Counsel:
Mr A Kumar of counsel (Plaintiff)
Ms M Tibbey of counsel (First and second defendants)
Solicitors:
Karam Ramrakha (Plaintiff)
LC Muriniti & Associates (First and second defendants)

File Number(s): 2012/214069

Judgment

These proceedings were commenced in this Court by summons commencing an appeal filed on 10 July 2012. The plaintiff sought to appeal both the decision of the Administrative Decisions Tribunal New South Wales made…

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 Gani v Maiolo

Details

AGLC: Gani v Maiolo [2012] NSWSC 1417
Case: [2012] NSWSC 1417
Decision Date: 27 November 2012

CaseChat Overview and Summary

In Gani v Maiolo, the plaintiff, Gani, initiated proceedings against the defendants, Maiolo, in the Administrative Decisions Tribunal seeking relief related to a lease agreement. The dispute centred around issues such as the commencement date of the lease, the length of a rent-free period, and whether Gani had been locked out for non-payment of rent. Additionally, the plaintiff claimed that various chattels were not returned, sought to hold the defendants liable for the cost of a new awning, and argued that the bond had been forfeited. The Tribunal ruled in favour of the defendants on all issues, a decision subsequently affirmed by the Appeal Panel under section 119 of the Administrative Decisions Tribunal Act 1997.

The legal issues before the court involved the interpretation of the lease agreement, particularly the terms regarding rent, the rent-free period, and the return of chattels. Furthermore, the court had to determine whether the lessors were liable for the cost of a new awning and whether the bond had been forfeited. The court also considered the appeal against the decision to award costs to the defendants.

The court found that there was no error on the part of the Tribunal or the Appeal Panel in their decisions, affirming that the lease terms were correctly interpreted and that the defendants were not liable for the additional costs or bond forfeiture. The Appeal Panel's decision regarding costs was upheld as Gani failed to demonstrate any error or advance any grounds for appeal. Consequently, the appeal was dismissed, and the orders of the Tribunal and Appeal Panel were affirmed, with no costs awarded in the appeal.

The final orders of the court affirmed the decisions of the Tribunal and the Appeal Panel, dismissing Gani's appeal and upholding the original decisions. The defendants were not required to pay costs for the appeal proceedings.

Orders