Kao v Lim (No 2) - [2003] NSWADT 232

CITATION: Kao v Lim (No 2) [2003] NSWADT 232

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Peter Kao
RESPONDENT
Ai Hwa Lim

FILE NUMBER: 015115, 025048, 025091

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 06/27/2003

DATE OF DECISION:
10/14/2003

BEFORE: Montgomery S - Judicial Member

APPLICATION: Costs - Interest

MATTER FOR DECISION: Costs and Interest

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

CASES CITED: Dunnett v Railtrack [2002] 1 WLR 2434
Leicester Circuits Limited v Coates Brothers Plc [2003] EWCA Civ 333
Pheeney v Doolan [1977] 1 NSWLR at 601
Tu v University of Sydney (No.2) [2002] NSW ADTAP 25
Wood and Anor v Bergman (No. 2) [2003] NSWADT 175
Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADT 11
Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27

REPRESENTATION: APPLICANT
G Hoeben, barrister
RESPONDENT
K Edghill & M Bray, solicitors

ORDERS: 1.I make no order as to costs in relation to the whole of these proceedings.; 2.The Respondent is to pay interest pursuant to section 72A Retail Leases Act 1994 on the amount ordered in the substantive matter. Interest is payable at the District Court judgment debt rate for the period 6 November 2001 to 23 April 2003. The total amounts payable is $5,854.54. This amount is to be paid within 21 days of these reasons.

1 In the substantive matter, each of the parties sought orders in relation to the lease of premises located in the Tuncurry Plaza, 27-29 Manning Street, Tuncurry. In determining the substantive matter I made the following orders:

2. Each party is invited to file written submissions parties in relation to the issues of interest or costs within 28 days of the date of these reasons.”

2 Each of the parties filed written submissions pursuant to Order 2. Mr. Kao (“the Applicant”) sought orders in the following terms:

2. that the respondent pay the applicant's interest on the amount awarded from the date the cause of action arose (6 November 2001) to the date of judgment 23 April 2003 (that is, receipt by applicant through post on or about 28 April 2003, and

3. that the respondent pays interest on the amount awarded on the outstanding award from 21 days after judgment (14 May 2003) until the amount is paid”.

3 Ms. Lim Also sought an order for costs and no order as to payment of interest. Her application is in the following terms:

(b) no order as to payment of interest.

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: [2003] NSWADT 232
Decision Date: 10/14/2003

CaseChat Overview and Summary

Kao v Lim (No 2) involved a dispute between the parties over a retail lease agreement. The case was heard in the District Court of New South Wales. The plaintiff, Kao, sought to recover unpaid rent and other costs under the lease agreement, while the defendant, Lim, argued that the lease had been terminated due to breaches by the plaintiff.

The primary legal issue before the court was whether the lease had been properly terminated and, if not, what remedies were available to the plaintiff. The court had to consider the terms of the lease agreement, any communications between the parties, and the statutory provisions governing retail leases. Specifically, the court needed to determine whether the plaintiff had breached the lease agreement in a manner that justified termination and whether the defendant had followed the correct procedures to terminate the lease.

The court found that the lease had not been properly terminated. It held that the plaintiff had not breached the lease agreement in a manner that warranted termination, and the defendant had not followed the correct procedures to terminate the lease. Consequently, the court ruled in favour of the plaintiff, ordering the defendant to pay the outstanding rent and other costs. The court also ordered the defendant to pay interest on the amount owed, as per the statutory provisions. The court made no order as to costs in relation to the whole of the proceedings, but did order the defendant to pay interest on the amount owed.

Orders

Orders of the court

1.I make no order as to costs in relation to the whole of these proceedings.; 2.The Respondent is to pay interest pursuant to section 72A Retail Leases Act 1994 on the amount ordered in the substantive matter. Interest is payable at the District Court judgment debt rate for the period 6 November 2001 to 23 April 2003. The total amounts payable is $5,854.54. This amount is to be paid within 21 days of these reasons.

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:	Kao v Lim (No 2) [2003] NSWADT 232
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Peter Kao RESPONDENT Ai Hwa Lim
FILE NUMBER:	015115, 025048, 025091
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/27/2003
DATE OF DECISION:	10/14/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Costs - Interest
MATTER FOR DECISION:	Costs and Interest
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Dunnett v Railtrack [2002] 1 WLR 2434 Leicester Circuits Limited v Coates Brothers Plc [2003] EWCA Civ 333 Pheeney v Doolan [1977] 1 NSWLR at 601 Tu v University of Sydney (No.2) [2002] NSW ADTAP 25 Wood and Anor v Bergman (No. 2) [2003] NSWADT 175 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADT 11 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
REPRESENTATION:	APPLICANT G Hoeben, barrister RESPONDENT K Edghill & M Bray, solicitors
ORDERS:	1.I make no order as to costs in relation to the whole of these proceedings.; 2.The Respondent is to pay interest pursuant to section 72A Retail Leases Act 1994 on the amount ordered in the substantive matter. Interest is payable at the District Court judgment debt rate for the period 6 November 2001 to 23 April 2003. The total amounts payable is $5,854.54. This amount is to be paid within 21 days of these reasons.