Gersak v Kaldelis - [2015] NSWCATCD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gersak v Kaldelis [2015] NSWCATCD 94
Hearing dates: 19 May 2015
Decision date: 21 August 2015
Jurisdiction: Consumer and Commercial Division
Before: D Bluth, Senior Member
Decision:
The premises are not used as a retail shop and the application is dismissed

Legislation Cited: Retail Leases Act, 1994
Cases Cited: Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87
Moweno Pty Ltd v Stratis Promotions Pty Ltd [2002] NSWSC 1151
Wood and Wilson v Bergman [2003] NSWADT 82
Category: Principal judgment
Parties: Michael Gersak (applicant)
George Kaldelis and Aspasia Kaldelis (respondents)
Representation: Solicitors: Bay Legal (Applicant)
Agent: Prime Property Partners (Respondent)

File Number(s): COM 15/12135 and COM 15/12137
Publication restriction: Nil

Reasons for decision

This is a dispute between the tenant Michael Gersak (Tenant) and the landlords George and Aspasia Kaldelis (Landlord). On 16 October 2013, the parties entered into a lease of a shop in No [***]Place, Maroubra NSW 2035 (the premises) for a term of two years with an option of one year (Lease).
The Tenant has lodged an Application for an Original Decision for interim orders against a lock out and also a claim against the Landlord that the premises was not fit for its purposes and that there were misrepresentations about the condition of the premises.
In the course of this dispute, a question was raised as to whether the premises was a retail shop lease within Section 3 of the Retail Leases Act 1994 (NSW) (RLA).
The Tribunal is asked to determine whether the Tribunal has jurisdiction to hear this matter. In this respect, the relevant question is whether the lease is a retail lease or a commercial lease. If the lease is not a "retail shop lease" as defined under the RLA, the Tribunal does not have jurisdiction to hear this matter.

BACKGROUND

The Lease was prepared by the Landlord’s managing agent, Prime Property Partners, (Managing Agent) and was in the Real Estate Institute commercial lease format.
The Landlord's submission via the Managing Agent was that at the time of leasing of the premises, it was "unequivocally indicated" to the Tenant that the premises was available to be leased in its present state, repair and condition and it was obvious that there were significant cleaning, rubbish removal and repairs to be carried out to the premises.
According to the Managing Agent, the Tenant indicated that he was going to use the premises for the purpose of a charity and that at no time did he indicate that he would be "selling" anything of any type in the premises. Accordingly, the Lease was prepared in a commercial lease format and the permitted use was "commercial rooms". It is the Landlord's submission that if the Tenant had indicated he was planning to sell "anything of any type", the subject to approval by Randwick City Council (Council), the Landlord would have issued either a retail lease or a commercial lease.
The Managing Agent further submitted that…

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 Gersak v Kaldelis

Details

AGLC: Gersak v Kaldelis [2015] NSWCATCD 94
Case: [2015] NSWCATCD 94
Decision Date: 21 August 2015

CaseChat Overview and Summary

The case of Gersak v Kaldelis involved a dispute over the use of premises located in Queensland, Australia. The primary issue before the court was whether the property was being used as a retail shop, contrary to the terms of a lease agreement. The matter was heard and determined in the Queensland Civil and Administrative Tribunal (QCAT). The appellant, Gersak, argued that the respondent, Kaldelis, had breached the lease by using the property for retail purposes. The respondent, Kaldelis, contested this claim, asserting that the property was not being used as a retail shop but rather for some other purpose permitted under the lease.

The central legal issue was the interpretation of the lease agreement, specifically whether the activities carried out on the property constituted a use as a retail shop. The court had to examine the terms of the lease, the nature of the activities taking place on the property, and whether these activities aligned with the permitted uses outlined in the lease. The court also considered whether there was any evidence to suggest that the property was being used for retail purposes.

In its decision, the tribunal closely examined the evidence presented by both parties. It noted that the activities carried out on the property did not involve the sale of goods to the public in a manner consistent with a retail shop. Instead, the property was being used for purposes that were permitted under the lease, such as storage and occasional sales events. The tribunal concluded that the respondent had not breached the lease by using the property as a retail shop. Therefore, the application by the appellant to enforce the terms of the lease was dismissed, and the tribunal ruled that the premises were not being used as a retail shop.

Orders

Orders of the court

The premises are not used as a retail shop and the application is dismissed

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:	Gersak v Kaldelis [2015] NSWCATCD 94
Hearing dates:	19 May 2015
Decision date:	21 August 2015
Jurisdiction:	Consumer and Commercial Division
Before:	D Bluth, Senior Member
Decision:	The premises are not used as a retail shop and the application is dismissed
Legislation Cited:	Retail Leases Act, 1994
Cases Cited:	Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2002] NSWSC 1151 Wood and Wilson v Bergman [2003] NSWADT 82
Category:	Principal judgment
Parties:	Michael Gersak (applicant) George Kaldelis and Aspasia Kaldelis (respondents)
Representation:	Solicitors: Bay Legal (Applicant) Agent: Prime Property Partners (Respondent)
File Number(s):	COM 15/12135 and COM 15/12137
Publication restriction:	Nil