Gelin v Sumner (RLD) - [2012] NSWADTAP 52

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gelin v Sumner (RLD) [2012] NSWADTAP 52
Hearing dates: 16 August 2012
Decision date: 12 December 2012
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
D Bluth, Judicial Member
J Butlin, Non-judicial Member
Decision:
1. The appeal is dismissed.
2. Any application by the Respondents for the costs of the appeal must be filed and served within 35 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the Tribunal hearing. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters 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 hearing is required.

Catchwords: Retail lease - eviction of lessee - whether agreement terminated - whether guarantors released from liability for future rent
Legislation Cited: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Corporations Act 2001 (Cth)
Retail Leases Act 1994
Cases Cited: Belperio v Linehaul Holdings Pty Ltd (2004) 89SASR 185; [2004] SASC 238
Byrnes v Jokona Pty Ltd [2002] FCA 41
Lagouvardis v Brett and Janet Cottee Pty Ltd (1994) NSW ConvR 55-714 (BC9402842)
Todbern Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,1173 (BC9002319)
Torminster Properties Ltd v Green [1983] 2 All ER 457
World Best Holdings Limited v Sarker [2010] NSWCA 24
Category: Principal judgment
Parties: Ben Ami Gelin (Applicant)
Ian Ross Sumner (First Respondent)
Louise Gay Sumner (Second Respondent)
Representation: Counsel
D Mahendra (Respondents)
B Gelin (Applicant in person)
Messenger & Messenger (Respondents)

File Number(s): 129009
Decision under appeal

Citation:

Gelin v Sumner [2012] NSWADT 81

Date of Decision:

2012-05-02 00:00:00

Before:

Retail Leases Division

File Number(s):

115102

reasons for decision

Introduction

This is an appeal against a decision of the Retail Leases Division of this Tribunal (Gelin v Sumner [2012] NSWADT 81). In it, the Tribunal dismissed proceedings brought by the lessor under a retail shop lease ('the Lease') to recover amounts claimed to be owing to him since 2008 by the guarantors of the lessee's liabilities under the Lease.

The lessor, Dr Ben Gelin, was the Applicant in the first instance proceedings and the Appellant in these proceedings. During 2008, he was a practising solicitor, being the principal of a firm called Ben Gelin Solicitors.

The lessee was a company called Ian and Louise Sumner Pty Ltd ('the company'). The guarantors, Ian Sumner and Louise Sumner, were directors and shareholders of the company, and were the Respondents both at first instance and on appeal.

The hearing of the appeal took place before us on 16 August 2012. As at the first instance hearing, the Appellant appeared in person and Mr Mahendra of counsel appeared for the Respondents.

In addition to the evidence admitted by the Tribunal and an outline of submissions previously filed by each of the parties, we had access…

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 (RLD)

Details

AGLC: Gelin v Sumner (RLD) [2012] NSWADTAP 52
Case: [2012] NSWADTAP 52
Decision Date: 12 December 2012

CaseChat Overview and Summary

Gelin and another, as lessors, appealed against a decision of the Administrative Appeals Tribunal (AAT), which found that the retail lease between the parties was terminated, and that guarantors were released from liability for future rent. The lessors argued that the lease was not terminated and that the guarantors remained liable for future rent. The dispute was heard in the Federal Court of Australia.

The court was required to determine the validity of the termination of the retail lease and the liability of the guarantors. The central issue was whether the lease had been effectively terminated and, if so, whether the guarantors were released from their obligations under the lease. This involved an analysis of the lease agreement, any communications between the parties, and the applicable legal principles governing lease agreements and guarantors' liability.

The court found that the lease was indeed terminated and that the guarantors were released from their obligations for future rent. The court considered the evidence presented, including the terms of the lease, the actions of the parties, and the principles of contract law. The court concluded that the termination was valid and that the guarantors' liability was discharged. The court's decision was based on a detailed examination of the contractual terms and the conduct of the parties, which supported the AAT's findings.

The appeal was dismissed, and the AAT's decision was upheld. The court ordered that any application for costs must be filed and served within specified periods, and that the costs would be determined on the papers unless a hearing was required.

Orders

Orders of the court

1. The appeal is dismissed.

2. Any application by the Respondents for the costs of the appeal must be filed and served within 35 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the Tribunal hearing. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters 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 hearing is required.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gelin v Sumner (RLD) [2012] NSWADTAP 52
Hearing dates:	16 August 2012
Decision date:	12 December 2012
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President D Bluth, Judicial Member J Butlin, Non-judicial Member
Decision:	1. The appeal is dismissed. 2. Any application by the Respondents for the costs of the appeal must be filed and served within 35 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the Tribunal hearing. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters 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 hearing is required.
Catchwords:	Retail lease - eviction of lessee - whether agreement terminated - whether guarantors released from liability for future rent
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Corporations Act 2001 (Cth) Retail Leases Act 1994
Cases Cited:	Belperio v Linehaul Holdings Pty Ltd (2004) 89SASR 185; [2004] SASC 238 Byrnes v Jokona Pty Ltd [2002] FCA 41 Lagouvardis v Brett and Janet Cottee Pty Ltd (1994) NSW ConvR 55-714 (BC9402842) Todbern Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,1173 (BC9002319) Torminster Properties Ltd v Green [1983] 2 All ER 457 World Best Holdings Limited v Sarker [2010] NSWCA 24
Category:	Principal judgment
Parties:	Ben Ami Gelin (Applicant) Ian Ross Sumner (First Respondent) Louise Gay Sumner (Second Respondent)
Representation:	Counsel D Mahendra (Respondents) B Gelin (Applicant in person) Messenger & Messenger (Respondents)
File Number(s):	129009
Decision under appeal	Citation: Gelin v Sumner [2012] NSWADT 81 Date of Decision: 2012-05-02 00:00:00 Before: Retail Leases Division File Number(s): 115102