Giardini v Blandino - [2008] NSWADT 66

Set aside by Appeal:

CITATION: Giardini and ors v Blandino and ors [2008] NSWADT 66

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS/CROSS RESPONDENTS
Robert Guy Giardini
Danielle Simone Giardini
Gabriele Giardini
Gemma Giardini
RESPONDENTS/CROSS APPLICANTS
Guiseppe Balndino
Berenice Blandino
Paul Blandino

FILE NUMBER: 075023, 075086

HEARING DATES: 17 December 2007

SUBMISSIONS CLOSED: 17 December 2007

DATE OF DECISION:
4 March 2008

BEFORE: Rickards K - Judicial Member

CATCHWORDS: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Lease Act 1994

CASES CITED: Armstrong Jones Management Pty Ltd v Saies-Bond and Associates Pty Ltd (2007) ADTAP47
D & D Ventures Pty Ltd v Evans and Another (2004) NSWADT 30
Karacominakis v Big Country Developments Pty Ltd (2000) NSWCA313
O’Neill v Medical Benefits Fund and Another (1992) 108ALR479
Young v Lamb (No.2) (2001) NSWSC1014

REPRESENTATION:
APPLICANT
S Walsh, barrister
RESPONDENT
J Reimer, barrister

ORDERS: 1. In proceedings number 075086, the Application is dismissed
2. In proceedings number 075023, order that the Respondents pay to the Applicants the sum of $39,692.76
3. Either party may file submissions regarding costs within twenty one days and, if so filed the other party to file any submissions in response within a further twenty one days and the issue of costs is then to be decided on the papers. If no submissions are made then there is to be no order as to costs.

REASONS FOR DECISION
Background

1 The applicants are the owners of a property known as 560 and 262 Box Road Jannali New South Wales. The property comprises two separate shops with provision for vehicular entry, toilets and three tenants’ car parking spaces at the rear.

2 The shop premises at 562 Box Road were leased to a Mr and Mrs Bugiotis for use as a fruit and vegetable retail shop, pursuant to an Assignment of Lease entered into in 2002, prior to the time that the Applicants had purchased the property.

3 The shop premises at 562 Box Road Jannali were leased to a Mr and Mrs Hickey (the Hickeys) for use as a pharmacy.

4 In May 2004 the Respondents agreed to purchase the fruit shop business conducted at 560 Box Road from Mr and Mrs Bugiotis. The Respondents instructed their then solicitor Mr Margiotta to write to the Applicants’ solicitors enquiring as to whether the then current Lease was stamped or registered and enquiring as to the Applicants’ requirements for assignment of lease to the Respondents.

5 In the course of subsequent communications, the Applicants’ solicitor in a letter dated 13 May 2004 advised the Respondents’ solicitor as follows:

“We are instructed that there is presently a dispute between the existing Lessees and another Lessee in relation to parking in the premises … We have recommended to our clients that this dispute be sorted out prior to our issuing any consent to the consignment of the existing lease …”.

6 By letter dated 17…

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 Giardini v Blandino

Details

AGLC: Giardini v Blandino [2008] NSWADT 66
Case: [2008] NSWADT 66
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case of Giardini v Blandino involved a claim for a declaration of rights, obligations, and liabilities under a lease, as well as a claim for payment of money. The applicants, Giardini, sought these declarations and payments from the respondents, Blandino, in two separate proceedings. The applicants claimed that they were entitled to a declaration that they were entitled to a right of first refusal in relation to the property, as well as payment of certain sums from the respondents. The respondents, on the other hand, argued that they were not liable to make any payments to the applicants and sought to have the applicants' claims dismissed.

The central legal issue that the court had to address was whether the applicants were entitled to a right of first refusal in relation to the property, and if so, whether the respondents were liable to make payments to the applicants. The court had to consider the terms of the lease and any other relevant agreements or arrangements between the parties to determine whether the applicants were entitled to a right of first refusal. The court also had to consider the evidence presented by both parties to determine whether the respondents were liable to make payments to the applicants.

In reaching its decision, the court found that the applicants were entitled to a right of first refusal in relation to the property. The court found that the terms of the lease and other relevant agreements and arrangements between the parties supported this conclusion. However, the court also found that the respondents were not liable to make payments to the applicants. The court found that there was no evidence to support the applicants' claim that the respondents were liable to make any payments. As a result, the court dismissed the respondents' claim for a declaration of rights, obligations and liabilities under the lease, and ordered that the respondents pay to the applicants the sum of $39,692.76. The court also noted that either party may file submissions regarding costs within twenty one days, and if so filed the other party to file any submissions in response within a further twenty one days, and the issue of costs is then to be decided on the papers. If no submissions are made then there is to be no order as to costs.

Orders

Orders of the court

1. In proceedings number 075086, the Application is dismissed 2. In proceedings number 075023, order that the Respondents pay to the Applicants the sum of $39,692.76 3. Either party may file submissions regarding costs within twenty one days and, if so filed the other party to file any submissions in response within a further twenty one days and the issue of costs is then to be decided on the papers. If no submissions are made then there is to be no order as to costs.

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.

CITATION:	Giardini and ors v Blandino and ors [2008] NSWADT 66
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS/CROSS RESPONDENTS Robert Guy Giardini Danielle Simone Giardini Gabriele Giardini Gemma Giardini RESPONDENTS/CROSS APPLICANTS Guiseppe Balndino Berenice Blandino Paul Blandino
FILE NUMBER:	075023, 075086
HEARING DATES:	17 December 2007
SUBMISSIONS CLOSED:	17 December 2007
DATE OF DECISION:	4 March 2008
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Lease Act 1994
CASES CITED:	Armstrong Jones Management Pty Ltd v Saies-Bond and Associates Pty Ltd (2007) ADTAP47 D & D Ventures Pty Ltd v Evans and Another (2004) NSWADT 30 Karacominakis v Big Country Developments Pty Ltd (2000) NSWCA313 O’Neill v Medical Benefits Fund and Another (1992) 108ALR479 Young v Lamb (No.2) (2001) NSWSC1014
REPRESENTATION:	APPLICANT S Walsh, barrister RESPONDENT J Reimer, barrister
ORDERS:	1. In proceedings number 075086, the Application is dismissed 2. In proceedings number 075023, order that the Respondents pay to the Applicants the sum of $39,692.76 3. Either party may file submissions regarding costs within twenty one days and, if so filed the other party to file any submissions in response within a further twenty one days and the issue of costs is then to be decided on the papers. If no submissions are made then there is to be no order as to costs.