Gani v Maiolo

[2012] NSWADTAP 10

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Gani v Maiolo (RLD) [2012] NSWADTAP 10

Hearing dates:

30 January 2012

Decision date:

05 March 2012

Jurisdiction:

Appeal Panel - Internal

Before:

M Chesterman, Deputy President
K Rickards, Judicial Member
J Butlin, Non-judicial Member

Decision:

1. The appeal is dismissed.

2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a further hearing is required.

Catchwords:

Retail shop lease - date when rent first payable - liability for cost of awning - claim for value of lessee's goods left in shop

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd [2006] NSWADT 323
Gani v Maiolo [2011] NSWADT 219

Category:

Principal judgment

Parties:

Mohammad Murul Gani (Appellant)
Maria Maiolo and Raffaele Maiolo (Respondents)

Representation:

M Rollinson (Appellant)
M Tibbey (Respondents)
Karam C Ramrakha & Associates (Appellant)
L Muriniti & Associates (Respondents)

File Number(s):

119047

 Decision under appeal 

Citation:

Gani v Maiolo [2011] NSWADT 219

Date of Decision:

2011-09-14 00:00:00

Before:

Retail Leases Division

File Number(s):

105144

decision

Introduction

1. (M CHESTERMAN (DEPUTY PRESIDENT), K RICKARDS (JUDICIAL MEMBER), J BUTLIN (NON-JUDICIAL MEMBER)): This is an appeal against a decision of the Retail Leases Division ( Gani v Maiolo [2011] NSWADT 219 - hereafter 'the Tribunal's decision') refusing relief claimed by the Applicant (now Appellant), Mr Mohammad Murul Gani.

1. Mr Gani sought relief following his eviction from retail shop premises at Manly ('the Premises') that had been leased to him by the Respondents, Ms Maria Maiolo and Mr Raffaele Maiolo.

1. The Tribunal's decision was delivered on 14 September 2011. We heard the appeal on 30 January 2012. At that hearing, Mr Rollinson of counsel appeared for Mr Gani and Ms Tibbey of counsel appeared for Mr and Ms Maiolo.

Factual outline

1. In this outline, we have drawn mainly on the Tribunal's account of the evidence that it admitted and on its findings, but have included also some parts of the evidence (both documentary and oral) that the Tribunal did not mention.

1. The memorandum of lease executed by the parties ('the Lease') contained provisions to the following effect:-

(a) The term of the Lease was five years and two days, commencing on 13 April 2010.

(b) The permitted use was 'restaurant'.

(c) A bond was stipulated in the form of a bank guarantee in the amount of $25,000.

(d) The lessee was obliged to keep the interior of the Premises and all fixtures and fittings inside them 'in a state of good repair having regard to its condition at the commencement of the Lease…