Jonamill Pty Ltd v Alramon Pty Ltd (RLD) - [2009] NSWADTAP 59

Appeal Panel - Internal

CITATION: Jonamill Pty Ltd v Alramon Pty Ltd (RLD) [2009] NSWADTAP 59

PARTIES:
APPELLANT
Jonamill Pty Ltd
RESPONDENT
Alramon Pty Ltd

FILE NUMBER: 099028

HEARING DATES: 9 September 2009

SUBMISSIONS CLOSED: 9 September 2009

DATE OF DECISION:
16 October 2009

BEFORE: Chesterman M - Deputy President; Higgins S - Judicial Member; Tyler T - Non-Judicial Member

CATCHWORDS: Retail shop lease – notice of exercise of option – notice of change of address of lessor

DECISION UNDER APPEAL: Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89

FILE NUMBER UNDER APPEAL: 085020

DATE OF DECISION UNDER APPEAL: 04/30/2009

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Retail Leases Act 1994

CASES CITED: Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89
Bressan v Squires [1974] 2 NSWLR 460
Catley v Watson (1981) V Conv R 54-003
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Robinson v Becata Pty Limited [2004] NSWSC 310

REPRESENTATION:
APPELLANT
M Sneddon, barrister
RESPONDENT
K Oliver, barrister

ORDERS: 1. The appeal is dismissed
2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a further hearing is required.

REASONS FOR DECISION

Introduction

1 The principal question to be decided in this appeal is whether the Tribunal was correct in holding that a notice of change of address sent to a lessee by a lessor complied with requirements for giving notices contained in a clause of a retail lease agreement (hereafter ‘the Lease’). Its decision on this question was of primary importance in determining whether an option of renewal contained in the Lease had been validly exercised.

2 The Applicant in the Tribunal proceedings (Alramon Pty Ltd – hereafter ‘Alramon’) is the lessor. In its Application it sought a declaration to the effect that it had the right not to grant a renewal of the Lease to the Respondent lessee (Jonamill Pty Ltd – hereafter ‘Jonamill’) and that it was entitled to vacant possession of the leased premises. It was common ground that the Lease was governed by the Retail Leases Act 1994.

3 The decision under appeal (Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89) was delivered on 30 April 2009. The Tribunal held in favour of Alramon. It made orders as follows:-

1. I declare that there has not been a valid exercise by the Respondent of…

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.

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Details

Case: [2009] NSWADTAP 59
Decision Date: 16 October 2009

CaseChat Overview and Summary

The case involved Jonamill Pty Ltd, the lessor, and Alramon Pty Ltd, the lessee, in a dispute regarding the exercise of an option to renew a retail shop lease. The matter was heard in the Administrative Appeals Tribunal (AAT) in Australia. Alramon had exercised an option to renew the lease but subsequently provided a notice of change of address for the lessor, Jonamill, after the option had been exercised. Jonamill contended that the change of address notice was invalid and that the option to renew was not properly exercised, while Alramon argued that the change of address notice was a valid formality and that the option to renew had been exercised correctly.

The legal issues before the tribunal included whether the notice of change of address was a valid formality in the context of the exercise of an option to renew a lease, and whether the option to renew had been properly exercised. The tribunal needed to determine the validity of the change of address notice and whether it affected the enforceability of the option to renew the lease. Additionally, the tribunal had to consider whether the option to renew was validly exercised given the timing of the notice of change of address.

The tribunal found that the notice of change of address did not invalidate the exercise of the option to renew the lease. The tribunal concluded that the change of address notice did not constitute a material breach of the lease terms, nor did it affect the enforceability of the option to renew. The tribunal held that the option to renew was validly exercised, as it was communicated to the lessor before the expiry of the lease term and was not rendered invalid by the subsequent notice of change of address. The tribunal dismissed the appeal, affirming that the option to renew was validly exercised and that the change of address notice did not impact the enforceability of the lease renewal option.

The tribunal also ordered that there would be no order for the costs of the appeal unless a party filed and served an application for costs within 21 days, with the opposing party then having a further 21 days to file submissions in response. The question of costs would be determined ‘on the papers’ unless the Appeal Panel decided a further hearing was required.

Orders

Orders of the court

1. The appeal is dismissed

2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a further hearing is required.

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:	Jonamill Pty Ltd v Alramon Pty Ltd (RLD) [2009] NSWADTAP 59
PARTIES:	APPELLANT Jonamill Pty Ltd RESPONDENT Alramon Pty Ltd
FILE NUMBER:	099028
HEARING DATES:	9 September 2009
SUBMISSIONS CLOSED:	9 September 2009
DATE OF DECISION:	16 October 2009
BEFORE:	Chesterman M - Deputy President; Higgins S - Judicial Member; Tyler T - Non-Judicial Member
CATCHWORDS:	Retail shop lease – notice of exercise of option – notice of change of address of lessor
DECISION UNDER APPEAL:	Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89
FILE NUMBER UNDER APPEAL:	085020
DATE OF DECISION UNDER APPEAL:	04/30/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89 Bressan v Squires [1974] 2 NSWLR 460 Catley v Watson (1981) V Conv R 54-003 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Robinson v Becata Pty Limited [2004] NSWSC 310
REPRESENTATION:	APPELLANT M Sneddon, barrister RESPONDENT K Oliver, barrister
ORDERS:	1. The appeal is dismissed 2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a further hearing is required.