Kennard v Shanhaven Pty Limited - [2002] NSWADT 243

CITATION: Kennard -v- Shanhaven Pty Limited [2002] NSWADT 243

DIVISION: Retail Leases Division

PARTIES: 1. APPLICANT
Joseph Rohan Kennard trading as Tabanacal
1. RESPONDENT
Ed Silk Real Estate
2. APPLICANT
Shanhaven Pty Limited
2. RESPONDENT
Joseph Rohan Kennard

FILE NUMBER: 1. 015098; 2. 015127

HEARING DATES: 15/08/2002 - 16/08/2002

SUBMISSIONS CLOSED: 08/16/2002

DATE OF DECISION:
11/21/2002

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for payment of money - Claim for relief against forfeiture - Claim for surrender of possession of premises

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Prasad and Walker –v- Fairfield City Council, [2000] NSWADT 164

REPRESENTATION:
1. APPLICANT
In person
2. APPLICANT
J Priestly, barrister
1. RESPONDENT
J Priestly, barrister
2. RESPONDENT
In person

ORDERS: 1a. Lessee is to pay $945.00 per week (being rent including GST $831.25, outgoings including GST $113.75) before 4:45pm Friday 16 August 2002, and on each and every Friday thereafter. The Lease terminates immediately without further order if any payment is missed; 1b. The December 2002 CPI adjustment is to apply, and the weekly rent is to be adjusted accordingly; 2. The Lease is to terminate on 1 April 2003, unless before that date the Lessee has entered into and completed a valid, bona fide contract for sale of the benefit of the Lease registered number 6847710Q; The Lessor is to comply with Lessor’s obligations under part 5 of the Retail Leases Act with respect to assignment of lease; 3. The Lessee’s claim for compensation, damages, and extension of lease is dismissed; 4. The Lessor shall cause an audit of all outgoings incurred from the date of commencement of the Lease, and is to deliver copy to the Lessee by 16 September 2002. Section 29 is to be complied with; 5. The Lessee is to pay the Lessor the sum of $15,000.00 on assignment of the Lease; 6. The Lessee is to pay Ed Silk Real Estate costs in the sum of $1,500.00 within eight weeks of the date of the hearing (11 October 2002); 7. Lessee to install and keep efficiently and properly operating a calibrated noise monitor with a visual sound level indicator installed in a prominent position to warn of impending breach of the standard noise conditions (Section 17AA) referred to in the report of Ambiance Audio Services dated 4 September 2001. This monitor is to be connected to the power circuit of the sound amplifiers in use in the premises so that the power to such amplifiers is cut if the sound levels are not reduced after six seconds; 8. Liberty to restore on five days notice.

1 These proceedings arise out of a lockout. The premises are an upstairs restaurant and terrace in Byron Bay, which have had a 3am restaurant on-licence for many years. The premises are in a commercial building, and are up a side street which, although on the way to and quite close to the beach, is just off the main pedestrian tourist circuit of the…

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: [2002] NSWADT 243
Decision Date: 11/21/2002

CaseChat Overview and Summary

Kennard, the lessee, brought an action against Shanhaven Pty Limited, the lessor, in the Supreme Court of New South Wales. The dispute centres on the interpretation and enforcement of a retail lease agreement, with issues surrounding rent, outgoings, lease termination, and compliance with statutory obligations. The lessee sought relief from certain lease conditions, an extension of the lease term, and compensation for alleged breaches. The lessor, on the other hand, sought enforcement of the lease terms, including the payment of rent and outgoings, compliance with noise conditions, and the termination of the lease under specific circumstances.

The court was tasked with determining the proper interpretation of the lease terms, particularly concerning the conditions for lease termination, the calculation of rent and outgoings, and the lessor's obligations under the Retail Leases Act. The lessee argued that certain clauses in the lease were ambiguous and should be construed against the lessor, while the lessor maintained that the lease terms were clear and should be enforced as written. The court needed to resolve these issues to provide clarity on the rights and obligations of both parties under the lease.

In its decision, the court held that the lease terms were clear and unambiguous, and thus, should be enforced as written. The court ruled that the lessee was required to pay the specified weekly rent and outgoings, with the lease terminating if any payment was missed. The court also determined that the lessor was entitled to a CPI adjustment for December 2002 and that the lease would terminate on 1 April 2003 unless the lessee had completed a valid sale of the lease before that date. Additionally, the court ordered the lessee to comply with certain conditions, including the installation of a noise monitor, and dismissed the lessee's claims for compensation and an extension of the lease term. The court further ordered the lessor to provide an audit of outgoings and directed the payment of costs to the lessor and a real estate agent.

The final orders of the court included specific directives for the payment of rent and outgoings, the application of a CPI adjustment, and the conditions for lease termination. The court also mandated the installation of a noise monitor by the lessee and ordered the payment of costs. The court dismissed the lessee's claims for compensation and an extension of the lease term, and directed the lessor to provide an audit of outgoings. The lessor was also required to comply with certain statutory obligations under the Retail Leases Act.

Orders

Orders of the court

1a. Lessee is to pay $945.00 per week (being rent including GST $831.25, outgoings including GST $113.75) before 4:45pm Friday 16 August 2002, and on each and every Friday thereafter. The Lease terminates immediately without further order if any payment is missed; 1b. The December 2002 CPI adjustment is to apply, and the weekly rent is to be adjusted accordingly; 2. The Lease is to terminate on 1 April 2003, unless before that date the Lessee has entered into and completed a valid, bona fide contract for sale of the benefit of the Lease registered number 6847710Q; The Lessor is to comply with Lessor’s obligations under part 5 of the Retail Leases Act with respect to assignment of lease; 3. The Lessee’s claim for compensation, damages, and extension of lease is dismissed; 4. The Lessor shall cause an audit of all outgoings incurred from the date of commencement of the Lease, and is to deliver copy to the Lessee by 16 September 2002. Section 29 is to be complied with; 5. The Lessee is to pay the Lessor the sum of $15,000.00 on assignment of the Lease; 6. The Lessee is to pay Ed Silk Real Estate costs in the sum of $1,500.00 within eight weeks of the date of the hearing (11 October 2002); 7. Lessee to install and keep efficiently and properly operating a calibrated noise monitor with a visual sound level indicator installed in a prominent position to warn of impending breach of the standard noise conditions (Section 17AA) referred to in the report of Ambiance Audio Services dated 4 September 2001. This monitor is to be connected to the power circuit of the sound amplifiers in use in the premises so that the power to such amplifiers is cut if the sound levels are not reduced after six seconds; 8. Liberty to restore on five days notice.

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:	Kennard -v- Shanhaven Pty Limited [2002] NSWADT 243
DIVISION:	Retail Leases Division
PARTIES:	1. APPLICANT Joseph Rohan Kennard trading as Tabanacal 1. RESPONDENT Ed Silk Real Estate 2. APPLICANT Shanhaven Pty Limited 2. RESPONDENT Joseph Rohan Kennard
FILE NUMBER:	1. 015098; 2. 015127
HEARING DATES:	15/08/2002 - 16/08/2002
SUBMISSIONS CLOSED:	08/16/2002
DATE OF DECISION:	11/21/2002
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for payment of money - Claim for relief against forfeiture - Claim for surrender of possession of premises
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Prasad and Walker –v- Fairfield City Council, [2000] NSWADT 164
REPRESENTATION:	1. APPLICANT In person 2. APPLICANT J Priestly, barrister 1. RESPONDENT J Priestly, barrister 2. RESPONDENT In person
ORDERS:	1a. Lessee is to pay $945.00 per week (being rent including GST $831.25, outgoings including GST $113.75) before 4:45pm Friday 16 August 2002, and on each and every Friday thereafter. The Lease terminates immediately without further order if any payment is missed; 1b. The December 2002 CPI adjustment is to apply, and the weekly rent is to be adjusted accordingly; 2. The Lease is to terminate on 1 April 2003, unless before that date the Lessee has entered into and completed a valid, bona fide contract for sale of the benefit of the Lease registered number 6847710Q; The Lessor is to comply with Lessor’s obligations under part 5 of the Retail Leases Act with respect to assignment of lease; 3. The Lessee’s claim for compensation, damages, and extension of lease is dismissed; 4. The Lessor shall cause an audit of all outgoings incurred from the date of commencement of the Lease, and is to deliver copy to the Lessee by 16 September 2002. Section 29 is to be complied with; 5. The Lessee is to pay the Lessor the sum of $15,000.00 on assignment of the Lease; 6. The Lessee is to pay Ed Silk Real Estate costs in the sum of $1,500.00 within eight weeks of the date of the hearing (11 October 2002); 7. Lessee to install and keep efficiently and properly operating a calibrated noise monitor with a visual sound level indicator installed in a prominent position to warn of impending breach of the standard noise conditions (Section 17AA) referred to in the report of Ambiance Audio Services dated 4 September 2001. This monitor is to be connected to the power circuit of the sound amplifiers in use in the premises so that the power to such amplifiers is cut if the sound levels are not reduced after six seconds; 8. Liberty to restore on five days notice.