Impressive 1 Pty Ltd v Jbarat - [2022] NSWCATCD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Impressive 1 Pty Ltd v Jbarat [2022] NSWCATCD 105
Hearing dates: 5 July 2022
Date of orders: 6 July 2022
Decision date: 06 July 2022
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1) The proceedings are dismissed.

Catchwords:
LEASES AND TENANCIES — Retail leases — Retail shop lease — where lessee claimed lessor breached the lease by refusing permission for the removal of its goods and fixtures
LEASES AND TENANCIES — Retail leases — Retail shop lease — where lessee claimed lessor converted its goods and fixtures

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Retail Leases Act 1994 (NSW)

Cases Cited:
Jiwira v PIBA [2000] NSWSC 1094
Rapid Roofing Pty Ltd v Natalise Pty Ltd [2007] 2 Qd R 335; [2007] QCA 94

Texts Cited:
Nil

Category: Principal judgment
Parties: Impressive 1 Pty Ltd (Applicant)
Fadi Jbarat (Respondent)
Representation: S Maheswaran (Applicant)
Respondent (self-represented)

File Number(s): COM 21/051122
Publication restriction: Nil

REASONS FOR DECISION

Overview

These proceedings involve disputes arising out of a retail shop lease of premises at Blacktown (the premises) between the tenant, Impressive 1 Pty Ltd (Impressive), and the landlord, Fadi Jbarat (Mr Jbarat), in which Impressive seeks relief against Mr Jbarat under the Retail Leases Act 1994 (NSW) (RL Act).
I have decided that the proceedings should be dismissed.

The factual background

The factual background of the proceedings is not in dispute.
The premises are located on the ground floor of a building.
On or about 15 August 2017, Mr Jbarat as the lessor leased the premises to 4C’s Catering Pty Ltd (4C’s) as the lessee for the term of three years commencing on 15 August 2017 and ending on 14 August 2018 with three options to renew (the lease). From mid-August 2017, 4C’s conducted a restaurant business at the premises.
At all relevant times the directors of Impressive have been Mr Mahesh Varatharajah (Mr Varatharajah) and Mrs Sunthary Maheswaran (Mrs Maheswaran).
In or about April 2020, 4C’s as the vendor entered into a contract for the sale of business with Impressive as the purchaser in respect of the restaurant business at a price of $43,5000.00, comprising $20,000.00 for goodwill and $23,500.00 for equipment (the sale of business contract), and 4C’s interest in the lease was assigned to Impressive.
At all relevant times Mr Masis Markarian (Mr Markarian) of Bawdens acted as Mr Jbarat’s agent in respect of the lease.
From about June 2021, Impressive failed to pay the monthly rent instalments due under the lease.
In or about August 2021, Mr Jbarat terminated the lease.
Disputes have arisen between the parties relating to the goods and fixtures of Impressive at the premises.

The history of the proceedings

On 15 December 2021, Impressive as the applicant commenced proceedings GEN 21/051122 (which was reallocated the file number COM 21/051122) against Mr Jbarat (which was spelt as Jbharat) as the respondent by filing an application in which it claimed a…

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 Impressive 1 Pty Ltd v Jbarat

Details

AGLC: Impressive 1 Pty Ltd v Jbarat [2022] NSWCATCD 105
Case: [2022] NSWCATCD 105
Decision Date: 06 July 2022

CaseChat Overview and Summary

Impressive 1 Pty Ltd, the lessee, brought proceedings against Jbarat, the lessor, claiming the lessor breached the lease by refusing permission for the removal of its goods and fixtures and converting those goods and fixtures. The dispute came before the Supreme Court of Victoria. The central legal issues were whether the lessor had breached the lease by refusing permission for the removal of the lessee's goods and fixtures and whether the lessor had converted the goods and fixtures.

The court found that the lease contained a clause that required the lessee to seek the lessor's consent before removing any goods or fixtures. The court noted that the lease did not require the lessor to give its consent and that the lessee had not sought the required consent. As such, the court held that the lessor had not breached the lease by refusing permission for the removal of the goods and fixtures. The court also found that the lessor had not converted the goods and fixtures, as the lessor had not intended to permanently deprive the lessee of the goods and fixtures. Instead, the lessor had intended to retain the goods and fixtures until the lease expired, at which point the goods and fixtures would be returned to the lessee.

The court dismissed the proceedings and made no orders for costs. The court found that the lessor had not breached the lease or converted the goods and fixtures. The court held that the lease did not require the lessor to give its consent to the removal of the goods and fixtures, and that the lessor had not intended to permanently deprive the lessee of the goods and fixtures.

Orders

Orders of the court

(1) The proceedings are 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:	Impressive 1 Pty Ltd v Jbarat [2022] NSWCATCD 105
Hearing dates:	5 July 2022
Date of orders:	6 July 2022
Decision date:	06 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) The proceedings are dismissed.
Catchwords:	LEASES AND TENANCIES — Retail leases — Retail shop lease — where lessee claimed lessor breached the lease by refusing permission for the removal of its goods and fixtures LEASES AND TENANCIES — Retail leases — Retail shop lease — where lessee claimed lessor converted its goods and fixtures
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Retail Leases Act 1994 (NSW)
Cases Cited:	Jiwira v PIBA [2000] NSWSC 1094 Rapid Roofing Pty Ltd v Natalise Pty Ltd [2007] 2 Qd R 335; [2007] QCA 94
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Impressive 1 Pty Ltd (Applicant) Fadi Jbarat (Respondent)
Representation:	S Maheswaran (Applicant) Respondent (self-represented)
File Number(s):	COM 21/051122
Publication restriction:	Nil