Irresistable Frocks v Sparbac and Roche

CITATION:	Irresistable Frocks v Sparbac and Roche [2003] NSWADT 241
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Irresistable Frocks Salon Pty Ltd FIRST RESPONDENT Sparbac Pty Ltd SECOND RESPONDENT Roche Group Pty Ltd
FILE NUMBER:	035060, 035103
HEARING DATES:	11/09/2003
SUBMISSIONS CLOSED:	09/11/2003
DATE OF DECISION:	11/10/2003
BEFORE:	Chesterman M - ADCJ (Deputy President); Fagg N - Member; Griffiths G - Member
APPLICATION:	Claim for payment of money - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Hutchens v Deauville Investments Pty Ltd (1986) 68 ALR 367
REPRESENTATION:	APPLICANT R Titterton, barrister FIRST RESPONDENT No appearance SECOND RESPONDENT R Angyal, barrister
ORDERS:	1 Each Respondent is liable to pay to the Applicant the sum of $21,818.63, comprising a principal sum of $20,085.25 and interest totalling $1,733.38; 2 The Second Respondent's cross application is dismissed; 3 In the absence of agreement on the matter, each party is to file written submissions on the matter of costs within 28 days of the date of these reasons

1 The principal application in this matter (file no. 035060) was made by Irresistible Frocks Salon Pty Ltd (‘Irresistible’) on 13 June 2003. It applied for an order that Sparbac Pty Ltd (‘Sparbac’) and/or Roche Group Pty Ltd (‘Roche’) pay to it the sum of $20,085.25. This was an amount debited to its bank account under a guarantee (‘the guarantee’) given by it to Sparbac, as lessor, in its capacity as lessee under a retail shop lease (‘the Lease’) of premises at Shop 2, 20-26 Cross Street, Double Bay (‘the premises’). Irresistible also sought interest and costs.

2 A cross application by Roche against Irresistible (file no. 035103) was filed on 9 September 2003, two days before the hearing. The principal relief that it claimed was an order that Irresistible pay to it the sum of $45,000 as damages for a breach of the Lease, or as damages for conversion of items of fitout that were the property of Roche. In the alternative, it sought a declaration that it was entitled to retain the sum of $20,085.25 pursuant to the guarantee and to apply it to the cost of reinstatement of the premises at the end of the current lease, refunding any balance to Irresistible, or that Irresistible breached the Lease by failing to provide an appropriate guarantee. Further in the alternative, it sought a declaration that Irresistible was liable to pay damages in the amount of the cost of such reinstatement. It also sought an order for costs.

3 Irresistible tendered an affidavit stating that its application had been duly served on Sparbac. Sparbac filed no notice of reply, evidence or submissions. It did not appear at the hearing. Although we received no submissions on its behalf, we consider that if any ground of defence that Roche put forward would also operate in Sparbac’s favour, we should take due account of it in determining the liability of Sparbac.

4 The case was heard on 11 September 2003. On 16 September,…