Kim v Kim - [2012] NSWADT 27

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Kim v Kim [2012] NSWADT 27
Hearing dates: 5 December 2011
Decision date: 21 February 2012
Jurisdiction: Retail Leases Division
Before: D Patten, Deputy President
G Pinter, (Adviser)
Decision:
1.Declaration that the lease registered AF 527342E is a retail shop lease within the Retail Leases Act 1994.
2.Order that Young Pil Kim, Kyung Suk Kim and and Paul Mercedes refund or procure the refund to Kwang Sun Kim of the bond of $46,800 paid under the said lease.
3. Order that Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim pay to Kwang Sun Kim the sum of $15,000 damages for wrongful repudiation of the said lease.
4. Order that Kwang Sun Kim pay to Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim the sum of $7,500 damages for breach of the covenants in the lease.
5. Either party has liberty to make submissions as to costs by filing such submissions with the Registry and serving a copy upon the other party within 21 days. The party served may reply within a further period of 21 days. Thereafter the matter to be decided on the papers.
6.Subject to order 5, no order as to costs.

Catchwords: Lease - failure to give notice under s 129 Conveyancing Act - wrongful repudiation - damages
Legislation Cited: Retail Leases Act 1994
Liquor Act 2007
Conveyancing Act 1919
Cases Cited: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Services [2010] NSWCA 268
Johnson v Jones (1961) 78 WN861
Braidotti v Queensland City Properties Ltd (1990-1991) 172 CLR 293
Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1WLR 1129
Category: Principal judgment
Parties:
Matter 105200
Kwang Sun Kim (Applicant)
Young Pil Kim (First Respondent)
Kyung Suk Kim (Second Respondent)
Paul Mercedes Kim (Third Respondent)
Matter 115109
Young Pil Kim (First Applicant)
Kyung Suk Kim (Second Applicant)
Paul Mercedes Kim (Third Applicant)
Kwang Sun Kim (Respondent)
Representation: Counsel
Mr Nguyen (Applicant matter 105200)
Mr K Ginges (Respondents matter 105200)
AL C Hoang (Applicant matter 105200)
Norris Allen (Respondents matter 105200)

File Number(s): 105200 & 115109

REasons for decision

There are 2 applications before the Tribunal.

In the earlier application 105200 filed on 24 December 2010 Kwang Sun Kim (hereafter for convenience 'the Applicant') sought relief against Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim ('the Respondents') and in the later application 115109 filed on 4 August 2011, the Respondents sought relief against the Applicant.

There was an objection to the Tribunal's jurisdiction raised in respect of the earlier application which I decided on the papers. In effect, in the reasons published on 4 May 2011 I concluded that there was prima facie evidence that amusement and entertainment services were provided in the relevant premises and that accordingly such premises were capable of being the subject of a retail shop lease or lease for the purposes of the Retail Leases Act 1994 ('the Act').

It was not disputed that…

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 Kim v Kim

Details

AGLC: Kim v Kim [2012] NSWADT 27
Case: [2012] NSWADT 27
Decision Date: 21 February 2012

CaseChat Overview and Summary

The matter in Kim v Kim involved a dispute concerning a retail shop lease, with Kwang Sun Kim as the lessee and Young Pil Kim, Kyung Suk Kim, and Paul Mercedes Kim as the lessors. The dispute centred around the failure to provide notice under section 129 of the Conveyancing Act and wrongful repudiation of the lease, as well as damages arising from the breach of lease covenants. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining several key legal issues. Firstly, it had to decide whether the lease in question was a retail shop lease within the meaning of the Retail Leases Act 1994. Secondly, it needed to determine if the lessors had wrongfully repudiated the lease and if so, whether the lessee was entitled to damages for such repudiation. Thirdly, the court had to consider whether the lessee had breached the covenants in the lease, and if so, whether the lessors were entitled to damages for this breach.

The court held that the lease was indeed a retail shop lease under the Retail Leases Act 1994. It further found that the lessors had wrongfully repudiated the lease, thereby entitling the lessee to damages. The court quantified these damages at $15,000. Conversely, the court found that the lessee had breached the covenants in the lease, leading to a finding of liability for damages in the amount of $7,500. The court ordered the lessors to refund the bond paid by the lessee and made orders for the payment of damages between the parties.

The court made several orders, including declaring that the lease was a retail shop lease under the Retail Leases Act 1994. It ordered the lessors to refund the bond paid by the lessee and to pay damages for wrongful repudiation. The court also ordered the lessee to pay damages for breach of lease covenants. Additionally, it provided liberty for the parties to make submissions on costs, with a final decision to be made on the papers. Subject to this, no order was made as to costs.

Orders

Orders of the court

1.Declaration that the lease registered AF 527342E is a retail shop lease within the Retail Leases Act 1994.

2.Order that Young Pil Kim, Kyung Suk Kim and and Paul Mercedes refund or procure the refund to Kwang Sun Kim of the bond of $46,800 paid under the said lease.

3. Order that Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim pay to Kwang Sun Kim the sum of $15,000 damages for wrongful repudiation of the said lease.

4. Order that Kwang Sun Kim pay to Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim the sum of $7,500 damages for breach of the covenants in the lease.

5. Either party has liberty to make submissions as to costs by filing such submissions with the Registry and serving a copy upon the other party within 21 days. The party served may reply within a further period of 21 days. Thereafter the matter to be decided on the papers.

6.Subject to order 5, no order as to costs.

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:	Kim v Kim [2012] NSWADT 27
Hearing dates:	5 December 2011
Decision date:	21 February 2012
Jurisdiction:	Retail Leases Division
Before:	D Patten, Deputy President G Pinter, (Adviser)
Decision:	1.Declaration that the lease registered AF 527342E is a retail shop lease within the Retail Leases Act 1994. 2.Order that Young Pil Kim, Kyung Suk Kim and and Paul Mercedes refund or procure the refund to Kwang Sun Kim of the bond of $46,800 paid under the said lease. 3. Order that Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim pay to Kwang Sun Kim the sum of $15,000 damages for wrongful repudiation of the said lease. 4. Order that Kwang Sun Kim pay to Young Pil Kim, Kyung Suk Kim and Paul Mercedes Kim the sum of $7,500 damages for breach of the covenants in the lease. 5. Either party has liberty to make submissions as to costs by filing such submissions with the Registry and serving a copy upon the other party within 21 days. The party served may reply within a further period of 21 days. Thereafter the matter to be decided on the papers. 6.Subject to order 5, no order as to costs.
Catchwords:	Lease - failure to give notice under s 129 Conveyancing Act - wrongful repudiation - damages
Legislation Cited:	Retail Leases Act 1994 Liquor Act 2007 Conveyancing Act 1919
Cases Cited:	Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Services [2010] NSWCA 268 Johnson v Jones (1961) 78 WN861 Braidotti v Queensland City Properties Ltd (1990-1991) 172 CLR 293 Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1WLR 1129
Category:	Principal judgment
Parties:	Matter 105200 Kwang Sun Kim (Applicant) Young Pil Kim (First Respondent) Kyung Suk Kim (Second Respondent) Paul Mercedes Kim (Third Respondent) Matter 115109 Young Pil Kim (First Applicant) Kyung Suk Kim (Second Applicant) Paul Mercedes Kim (Third Applicant) Kwang Sun Kim (Respondent)
Representation:	Counsel Mr Nguyen (Applicant matter 105200) Mr K Ginges (Respondents matter 105200) AL C Hoang (Applicant matter 105200) Norris Allen (Respondents matter 105200)
File Number(s):	105200 & 115109