Gani v Maiolo - [2011] NSWADT 219

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gani v Maiolo [2011] NSWADT 219
Hearing dates: 10/03/2011 and 18/04/2011
Decision date: 14 September 2011
Jurisdiction: Retail Leases Division
Before: D Bluth, Judicial member
Decision:
1. The Applicant was in breach of the Lease on 3 August 2010.
2.The bond money is not to be returned to the Applicant but forfeited by the Respondent.
3.The parties are to pay their own costs of the proceedings.

Catchwords: Promissory Estoppel
Legislation Cited: Retail Leases Act, 1994
Texts Cited: Meagher Gummow & Lehane, Equity Doctrines and Remedies, 2nd Ed
Snell's Principles of Equity, 28th Ed
Category: Principal judgment
Parties: Mohammad Murul Gani (Applicant)
Maria Maiolo and Raffaele Maiolo (Respondents)
Representation: Mooney & Kennedy (Applicant)
GP Legal (Respondent)

File Number(s): 105144

REasons for decision

This is a dispute between Mohammad Murul Gani as the lessee (Applicant) and Maria Maiolo and Raffaele Maiolo the lessors (Respondent) in connection with a lease at 155 Pittwater Road, Manly (Premises) being Registered Lease No AF4713685 (Lease) entered into on or about 13 April 2010.

The Applicant operated an Indian Restaurant briefly at the premises.

At the premises a restaurant had always been conducted and the last restaurant was called Terracotta which according to the lessor (and this was not challenged in the evidence) had a four and a half stars rating.

Terracotta gave notice to the Respondent that it was vacating the premises and the Respondent advertised in the Sydney Morning Herald for a new tenant under the heading "Restaurant Opportunity".

The Applicant answered the advertisement and met the Respondent on the premises, and after inspection agreed to lease the premises on the terms then being offered by the Respondent.

Consequently a lease was entered into between the Applicant and the Respondent for five years plus two days and the Applicant entered into possession after a rent free period and paid rent for two months.

The Respondent alleged that the Applicant was in arrears of rent and through the Respondent's lawyer gave notice to the Applicant regarding those arrears. Subsequently the Respondent on 3 August 2010 locked the Applicant out of the premises.

The Applicant approached this Tribunal for Original Decision in respect of the following orders:

1. Relief from forfeiture of the Lease; and

2. The Bond money of $25,000.00 retained by the Respondent be returned to the Rental Bond Unit.

Subsequently the Tribunal was advised that order number 1 (the relief against forfeiture) was not being pursued and thus the issue before this Tribunal was in respect of Order number 2 only.

Hearing

The matter came before the Tribunal for hearing on 10 March 2011. Mr Peter Kennedy represented the Applicant and Mr Bruno Gelonesi represented the Respondent. Unfortunately the Respondent Mr Raffaele Maiolo who had conducted all the negotiations with the Applicant was not present in the Tribunal on that day and on the application of the Applicant the hearing was adjourned until 18 April 2011 to allow the Respondent to attend the Tribunal and…

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 [2011] NSWADT 219
Case: [2011] NSWADT 219
Decision Date: 14 September 2011

CaseChat Overview and Summary

In the case of Gani v Maiolo, the dispute arose from a lease agreement between the Applicant, Mr Gani, and the Respondent, Mr Maiolo. The Applicant sought an order for the return of the bond money held by the Respondent, claiming the Respondent was estopped from forfeiting the bond money based on a promise made by the Respondent that the Applicant could stay in the premises rent-free until a certain date. The matter was heard in the County Court of Victoria.

The primary legal issue before the court was whether the Respondent was estopped from forfeiting the bond money. The Applicant argued that the Respondent's promise constituted a representation that entitled the Applicant to stay in the premises rent-free, and that the Applicant had acted to his detriment by relying on this promise. The Respondent contended that there was no binding agreement or consideration to support the promise, and therefore, the Applicant was not entitled to rely on the doctrine of promissory estoppel.

The court found that the Respondent's promise did not constitute a binding agreement as there was no consideration. The court held that for promissory estoppel to apply, there must be a clear and unequivocal promise, reliance on the promise, and detriment suffered by the promisee. In this case, while the Applicant had relied on the promise, there was no evidence of a detriment suffered by the Applicant as a result of the promise. The court further found that the Applicant had not acted to his detriment in a way that could be considered a legal detriment, such as by giving up a legal right or incurring a legal obligation. Therefore, the Applicant's claim for the return of the bond money was dismissed.

The court ordered that the Applicant was in breach of the Lease on 3 August 2010, that the bond money is not to be returned to the Applicant but forfeited by the Respondent, and that the parties are to pay their own costs of the proceedings.

Orders

Orders of the court

1. The Applicant was in breach of the Lease on 3 August 2010.

2.The bond money is not to be returned to the Applicant but forfeited by the Respondent.

3.The parties are to pay their own costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gani v Maiolo [2011] NSWADT 219
Hearing dates:	10/03/2011 and 18/04/2011
Decision date:	14 September 2011
Jurisdiction:	Retail Leases Division
Before:	D Bluth, Judicial member
Decision:	1. The Applicant was in breach of the Lease on 3 August 2010. 2.The bond money is not to be returned to the Applicant but forfeited by the Respondent. 3.The parties are to pay their own costs of the proceedings.
Catchwords:	Promissory Estoppel
Legislation Cited:	Retail Leases Act, 1994
Texts Cited:	Meagher Gummow & Lehane, Equity Doctrines and Remedies, 2nd Ed Snell's Principles of Equity, 28th Ed
Category:	Principal judgment
Parties:	Mohammad Murul Gani (Applicant) Maria Maiolo and Raffaele Maiolo (Respondents)
Representation:	Mooney & Kennedy (Applicant) GP Legal (Respondent)
File Number(s):	105144