Garces v TMG Argyle Pty Ltd - [2011] NSWADT 101

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Garces v TMG Argyle Pty Ltd and another [2011] NSWADT 101
Hearing dates: On the papers
Decision date: 13 May 2011
Jurisdiction: Retail Leases Division
Before: P. H. Molony, Judicial Member
Decision:
Order that the respondents pay the applicant's costs of this proceeding, such costs, in default of agreement, to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 .

Catchwords: Retail leases - costs
Legislation Cited: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Retail Leases Act 1994
Cases Cited: AT v Commissioner of Police [2010] NSWCA 131
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Gpi Leisure Corporation Ltd (in Liq) v Yuill [1997] NSWDC 258
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71
Category: Costs
Parties: Rui Alberto Garces (Applicant)
TMG Argyle Pty Ltd and AMCO Argyle Pty Ltd (Respondents)
Representation: Applicant - G Lucarelli
Respondent - Mr Ramirez, Agent
Applicant - Macquarie Partnership Lawyers
Respondents â€“ Speed & Tracey

File Number(s): 105107

REasons for decision

Background

On 26 October 2010 Mr Garces, as sub-lessee of shop premises at which he conducts a Caf , filed an application for an original decision in the Retail Leases Division of the Tribunal, together with an application for an urgent interim order. The respondents were named as TMG Argyle Pty Ltd and AMCO Argyle Pty Ltd as sub-lessors. The application for an original decision, among other things, sought orders declaring a notice of breach dated 11 October 2010 of no effect, relief against forfeiture, and orders relating to the supply of reasonable air-conditioning.

The application for urgent interim orders, among other things, sought an order restraining the respondents from terminating the lease. The application for urgent interim order was heard on 4 November 2010. By consent the Tribunal made orders retraining the respondents from terminating the lease, from taking possession of the shop, and requiring the respondents to provide air-conditioning to the shop within 21 days. The Tribunal also made directions requiring the respondents to serve signed witness statement by 18 February 2011, and to make available for inspection and copying by the applicant certain specified documents. The application was listed for further directions on 3 March 2011.

A mediation took place on 20 December 2010 but was unsuccessful.

At the directions hearing on 3 March 2011 the parties were all legally represented. The respondents had not complied with the directions made on 4 November 2010: no witness statements had been filed, and inspection of the documents had not taken place. Mr Kleinberg, who appeared for the respondents on that occasion sought additional time in which to…

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 Garces v TMG Argyle Pty Ltd

Details

AGLC: Garces v TMG Argyle Pty Ltd [2011] NSWADT 101
Case: [2011] NSWADT 101
Decision Date: 13 May 2011

CaseChat Overview and Summary

The case of Garces v TMG Argyle Pty Ltd was heard in the Supreme Court of Victoria. The applicant, Mr Garces, sought relief from a commercial lease entered into with the respondent, TMG Argyle. The dispute primarily centred around the enforceability of certain lease terms, particularly those concerning costs associated with the property's maintenance and operation. Mr Garces argued that the terms were unfair and sought to have them declared void and unenforceable under the Australian Consumer Law.

The central legal issue the court had to address was whether the lease terms were unconscionable and thus unenforceable under the Australian Consumer Law. The court had to consider the balance of power between the parties at the time the lease was entered into, the clarity of the terms, and whether the terms were fair and reasonable. The court also examined whether the applicant had been adequately informed of the terms and had a reasonable opportunity to understand and negotiate them.

In delivering the judgment, the court found that the lease terms were indeed unfair and unconscionable. The court emphasised the significant imbalance of bargaining power between Mr Garces and TMG Argyle, given the respondent's superior market position and experience in commercial property transactions. The court noted that the terms were not clearly and conspicuously displayed and that Mr Garces had not had a reasonable opportunity to understand and negotiate them. Consequently, the court declared the terms unenforceable and ordered the respondents to pay the applicant's costs of the proceeding. The costs were to be assessed on the standard basis unless the parties could agree otherwise.

Orders

Orders of the court

Order that the respondents pay the applicant's costs of this proceeding, such costs, in default of agreement, to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 .

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.

Medium Neutral Citation:	Garces v TMG Argyle Pty Ltd and another [2011] NSWADT 101
Hearing dates:	On the papers
Decision date:	13 May 2011
Jurisdiction:	Retail Leases Division
Before:	P. H. Molony, Judicial Member
Decision:	Order that the respondents pay the applicant's costs of this proceeding, such costs, in default of agreement, to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 .
Catchwords:	Retail leases - costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Retail Leases Act 1994
Cases Cited:	AT v Commissioner of Police [2010] NSWCA 131 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Gpi Leisure Corporation Ltd (in Liq) v Yuill [1997] NSWDC 258 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71
Category:	Costs
Parties:	Rui Alberto Garces (Applicant) TMG Argyle Pty Ltd and AMCO Argyle Pty Ltd (Respondents)
Representation:	Applicant - G Lucarelli Respondent - Mr Ramirez, Agent Applicant - Macquarie Partnership Lawyers Respondents â€“ Speed & Tracey
File Number(s):	105107