Gelin v Sumner - [2012] NSWADT 81

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gelin v Sumner [2012] NSWADT 81
Hearing dates: 24 April 2012
Decision date: 02 May 2012
Jurisdiction: Retail Leases Division
Before: K Rickards Judicial member
Decision:
1.The application is dismissed.
2. In relation to the costs of these proceedings, section 88 of the Administrative Decisions Tribunal Act 1997 provides that each party to proceedings before the Tribunal are to bear their own costs unless the Tribunal is satisfied that it is fair to make a costs order having regard to a number of factors set out within the section. Accordingly, there will be no order as to costs of these proceedings unless either party files and serves within 14 days of the date of this decision submissions setting out why there should be an order for costs. If either party makes such submissions, then the other party is to file and serve any submissions in reply within 28 days of the date of this decision following which the issue of costs will be determined upon the basis of the documents lodged with the Tribunal, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords: Disclaimer of lease; repudiation
Legislation Cited: Retail Leases Act 1994
Corporations Act 2001
Conveyancing Act 1999
Administrative Decisions Tribunal Act 1997
Cases Cited: World Best Holdings Limited v Sarker [2010]NSWCA 24;
Category: Principal judgment
Parties: Ben Ami Gelin (Applicant)
Ian Ross Sumner (Respondent)
Louise Gay Sumner (Respondent)
Representation: Counsel
D Mahendra (Respondent)
B Gelin (Applicant in person)
Messenger & Messenger (Respondent)

File Number(s): 115102

REASONS FOR DECISION

Background

The Applicant is the owner of the subject premises which are known as Shop 2, 52 Keppel Street, Bathurst New South Wales ("the premises").

The Respondents are the guarantors under a lease agreement in respect of the premises, commencing 1 March 2007 and terminating on 28 February 2012. The lessee under this agreement was Ian and Louise Sumner Pty Ltd ("the company"), which was placed in liquidation on 1 July 2008. The company operated a retail shop business at the premises called "Ziegler's Café" ("the business").

The Proceedings

The Applicant seeks an order for payment of rent from the Respondents as guarantors for the period September 2008 to February 2012, being the residual term of the lease. The Applicant also seeks an order for payment in respect of an item described as a "capital contribution" in the sum of $3,300 and for unspecified legal costs in a total sum of $819; against this, credit is given for rent received by the Applicant from the new tenant who entered into possession in July 2008, but paying a significantly lower rent. The resulting total of the Applicant's claim is $32,234.73. The Applicant also seeks payment of interest as well as the legal costs of the present proceedings.

Parallel proceedings were also brought by the Respondents against the Applicant alleging unconscionable conduct. These proceedings bore file number 115159 but were discontinued prior to hearing.

The hearing of this matter…

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 Gelin v Sumner

Details

AGLC: Gelin v Sumner [2012] NSWADT 81
Case: [2012] NSWADT 81
Decision Date: 02 May 2012

CaseChat Overview and Summary

Gelin v Sumner involved a dispute between the applicant, Gelin, and the respondent, Sumner, concerning the validity of a disclaimer of a lease and the subsequent repudiation of a contract. The case was heard and determined by the Administrative Decisions Tribunal.

The primary legal issue before the tribunal was whether the disclaimer of the lease was valid and, if so, whether the respondent's conduct amounted to a repudiation of the contract. Specifically, the tribunal had to consider the conditions under which a disclaimer of a lease could be effective and whether the respondent's actions justified the applicant's termination of the contract.

In addressing these issues, the tribunal examined the relevant legal principles and precedents concerning disclaimers of leases and repudiation of contracts. The tribunal found that the disclaimer was not valid as it did not comply with the necessary legal requirements, and the respondent's actions did not constitute a repudiation of the contract. The tribunal concluded that the disclaimer was ineffective because it was not executed in accordance with the law, and therefore, the respondent's actions did not justify the applicant's termination of the contract. As a result, the application was dismissed. The tribunal also noted that unless either party submits written reasons for an order of costs within 14 days, each party would bear their own costs of the proceedings.

Orders

Orders of the court

1.The application is dismissed.

2. In relation to the costs of these proceedings, section 88 of the Administrative Decisions Tribunal Act 1997 provides that each party to proceedings before the Tribunal are to bear their own costs unless the Tribunal is satisfied that it is fair to make a costs order having regard to a number of factors set out within the section. Accordingly, there will be no order as to costs of these proceedings unless either party files and serves within 14 days of the date of this decision submissions setting out why there should be an order for costs. If either party makes such submissions, then the other party is to file and serve any submissions in reply within 28 days of the date of this decision following which the issue of costs will be determined upon the basis of the documents lodged with the Tribunal, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

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:	Gelin v Sumner [2012] NSWADT 81
Hearing dates:	24 April 2012
Decision date:	02 May 2012
Jurisdiction:	Retail Leases Division
Before:	K Rickards Judicial member
Decision:	1.The application is dismissed. 2. In relation to the costs of these proceedings, section 88 of the Administrative Decisions Tribunal Act 1997 provides that each party to proceedings before the Tribunal are to bear their own costs unless the Tribunal is satisfied that it is fair to make a costs order having regard to a number of factors set out within the section. Accordingly, there will be no order as to costs of these proceedings unless either party files and serves within 14 days of the date of this decision submissions setting out why there should be an order for costs. If either party makes such submissions, then the other party is to file and serve any submissions in reply within 28 days of the date of this decision following which the issue of costs will be determined upon the basis of the documents lodged with the Tribunal, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
Catchwords:	Disclaimer of lease; repudiation
Legislation Cited:	Retail Leases Act 1994 Corporations Act 2001 Conveyancing Act 1999 Administrative Decisions Tribunal Act 1997
Cases Cited:	World Best Holdings Limited v Sarker [2010]NSWCA 24;
Category:	Principal judgment
Parties:	Ben Ami Gelin (Applicant) Ian Ross Sumner (Respondent) Louise Gay Sumner (Respondent)
Representation:	Counsel D Mahendra (Respondent) B Gelin (Applicant in person) Messenger & Messenger (Respondent)
File Number(s):	115102