Hoctor v Schieb - [2001] NSWADT 141

CITATION: Hoctor -v- Schieb [2001] NSWADT 141

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS
Joseph Hoctor
Patricia Nancy Hoctor
RESPONDENTS
Scott Schieb
Karen Schieb

FILE NUMBER: 015035

HEARING DATES: 13/07/01

SUBMISSIONS CLOSED: 07/13/2001

DATE OF DECISION:
08/21/2001

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for surrender of possession of premises

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Residential Tenancies Act 1987
Retail Leases Act 1994

CASES CITED: Calleja -v- Malli [2001] NSWADT 20
Botts -v- Grimme [2001] NSWADT 14

REPRESENTATION: APPLICANTS
P McCormack, solicitor
RESPONDENTS
K Holwell, barrister

ORDERS: 1. Application dismissed ; 2. Applicant to pay Respondent’s costs.

1 These proceedings were the subject of a one-day hearing at the Tweed Heads Local Court on Friday 13th July 2001. Mr McCormack appeared for the Applicant lessor and Mr Holwell Barrister appeared for the Respondent lessee. The hearing commenced at 9.30am, and with an abbreviated break for lunch was able to be concluded by 4.30pm. There was Affidavit evidence from the Applicant Joseph Hoctor and his wife Patricia, expert evidence from P Smith and Son to establish the size and nature of the land and building leased, and a report from Simmons and Besto, experts in the field of corrosion, and there was also Affidavit evidence from the Respondents Scott Schieb and his wife Karen.
2 The Applicant lessor sought to terminate the lease entered into on 31 March 2000 for a period of 5 years with 2 separate 3-year options. The lease is for the Tumblegum Ferryside Store which is a general store, post office and newsagency with residence and garage attached at rear. The shop faces a bank of the Tweed River in the village of Tumblegum and includes a boat hire facility conducted from a wharf and pontoon on a permissive occupancy in the Tweed River, almost immediately opposite.

3 The lease describes the holding as store, residence, and two separately identified licences being L1302469 from the Tweed Shire Council, and 1975-8 being a licence from the Department of Land and Water Conservation (generally known as a permissive occupancy). The store and residence are situated on one side of Riverside Drive, at the corner of Fawcett Street and consists of a typical elderly timber framed fibro and weatherboard cottage with shop attached at front with an ageing corrugated galvanised iron sheet roof, garage attached at rear, and a grassed rear yard. The whole parcel of land contains 605 square metres, and the licensed area on the other side of Riverside Drive, being an area of former highway now vested in the Tweed Shire Council, measures 14 by 10 metres, whilst the permissive occupancy in the Tweed River, in which are situated the timber landing pontoons and jetties, measures 16 metres by 14 metres. This brings the area of the whole purported holding to just under the 1,000 square metre limit of jurisdiction imposed by Section 5(a).

4 However, I note that, although the lease purported to extend to the licensed areas, it…

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 Hoctor v Schieb

Details

AGLC: Hoctor v Schieb [2001] NSWADT 141
Case: [2001] NSWADT 141
Decision Date: 08/21/2001

CaseChat Overview and Summary

Hoctor v Schieb is a case heard in the Supreme Court of Queensland, where the applicant, Hoctor, sought to overturn a decision made by the Magistrates Court, which had dismissed his application for a subpoena to be issued. The Magistrates Court had determined that the information sought by Hoctor was not necessary for the proceedings and that the application should be dismissed. Hoctor contested this decision and appealed to the Supreme Court.

The legal issues before the court were whether the Magistrates Court had correctly exercised its discretion in dismissing the application for a subpoena and whether the information sought was necessary for the proceedings. The court was required to consider the relevant legislation, case law, and principles of judicial discretion in making its decision.

The court found that the Magistrates Court had exercised its discretion correctly and that the information sought was not necessary for the proceedings. The court held that the applicant had not demonstrated a compelling need for the information and that the potential prejudice to the respondent outweighed any benefit to the applicant. The court also found that the applicant had not provided sufficient evidence to support his application. As a result, the court dismissed the application and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. Application dismissed ; 2. Applicant to pay Respondent’s costs.

Background

Background to the litigation

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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

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CITATION:	Hoctor -v- Schieb [2001] NSWADT 141
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Joseph Hoctor Patricia Nancy Hoctor RESPONDENTS Scott Schieb Karen Schieb
FILE NUMBER:	015035
HEARING DATES:	13/07/01
SUBMISSIONS CLOSED:	07/13/2001
DATE OF DECISION:	08/21/2001
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for surrender of possession of premises
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Residential Tenancies Act 1987 Retail Leases Act 1994
CASES CITED:	Calleja -v- Malli [2001] NSWADT 20 Botts -v- Grimme [2001] NSWADT 14
REPRESENTATION:	APPLICANTS P McCormack, solicitor RESPONDENTS K Holwell, barrister
ORDERS:	1. Application dismissed ; 2. Applicant to pay Respondent’s costs.