Knazovika v Wong - [2010] NSWADT 194

CITATION: Knazovika v Wong [2010] NSWADT 194

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Bonna King Knazovika
RESPONDENT
Shirley Nga Ching Wong

FILE NUMBER: 105064

HEARING DATES: 9 June 2010

SUBMISSIONS CLOSED: 9 July 2010

DATE OF DECISION:
30 July 2010

BEFORE: Molloy G - Judicial Member

CATCHWORDS: Exercise of option

LEGISLATION CITED: Conveyancing Act 1919.

CASES CITED: Bella Fruita Pty Limited v. Nyrang Holdings Pty Limited [2000] ACTSC 16
Bowman v. Durham Holdings Pty Limited [1973] HCA 55
Leads Plus Pty Limited v. Kowho Intercontinental Pty Limited [2000] NSWSC 459
Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191
Gilbert J McCaul (Aust) Pty Ltd v. Pitt Club Ltd (1954) 76 WM (NSW)72
Subway Realty v. The Investment #1 Pty Limited [2010] NSWADT 123
Spuds Surf Chatswood Pty Limited v. PT Limited [2007] NSWADT 130

REPRESENTATION:
APPLICANT
In person
RESPONDENT
G Holzman instructed by Michael Jassy & Associates

ORDERS: 1.I vacate all injunctions and urgent interim orders made 6 May 2010, 20 May 2010 and 9 June 2010
2.I dismiss the Application for Original Decision and the Application for Urgent Interim Orders, both filed 28 April 2010
3.I declare that the Applicant has not exercised the option
4.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.

REASONS FOR DECISION

Background

1 The Applicant is the lessee of premises known as Shop 2, “Cremorne Town Centre”, 287 Military Road Cremorne, being Lot 6 in SP64303. The Applicant has been in occupation of this shop for ten years. The original lease expired 30 April 2005; the Applicant exercised her option to renew the lease; the new lease was for a term of five years commencing 1 May 2005 and terminating 30 April 2010, registered AB80847J (“the lease”). This lease contained an option for renewal for a term of a further five years commencing 1 May 2010 and terminating 30 April 2015.

2 The lease specified the lessor as being “Cremorne Town Centre Pty Limited”, a corporation. At a time not specified in the evidence, the Respondent purchased the strata title Folio Identifier 6/SP64303 and thus became the lessor.

3 Difficulties arose between the parties, primarily relating to the late payment of rent and, importantly, the application of the bank guarantee to meet part of the rent arrears.

4 On 15 January 2010 the Applicant purported to exercise the option to renew by sending to the Respondent a pre-paid letter posted 15 January 2010. The Respondent denies receiving this letter; the Respondent says that the letter does not exercise the option such that the lease has expired and the Applicant should vacate the premises.

5 The Applicant, by Application for Original Decision filed 28 April…

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: [2010] NSWADT 194
Decision Date: 30 July 2010

CaseChat Overview and Summary

The case of Knazovika v Wong involved a dispute concerning the exercise of an option under a contract for the sale of real property. The matter was heard in the Administrative Appeals Tribunal. The Applicant, seeking to enforce an option to purchase, filed an application for original decision and urgent interim orders against the Respondent, who sought to dismiss the application and vacate any orders made in relation to it.

The central legal issue was whether the Applicant had properly exercised an option to purchase property, as provided for in the contract. The court had to determine whether the notice of exercise was valid, particularly focusing on whether it was delivered in accordance with the contractual requirements. The Applicant argued that the notice was properly delivered, while the Respondent contended that it was not.

The court found that the Applicant had not exercised the option as required by the contract. The notice of exercise did not meet the strict delivery requirements outlined in the contract, and thus the Applicant's claim failed. The court vacated the injunctions and interim orders previously made and dismissed the application for original decision and urgent interim orders. The court also declared that the Applicant had not exercised the option. Costs were not awarded, but either party could apply for costs within a specified timeframe.

Orders

Orders of the court

1.I vacate all injunctions and urgent interim orders made 6 May 2010, 20 May 2010 and 9 June 2010

2.I dismiss the Application for Original Decision and the Application for Urgent Interim Orders, both filed 28 April 2010

3.I declare that the Applicant has not exercised the option

4.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.

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:	Knazovika v Wong [2010] NSWADT 194
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Bonna King Knazovika RESPONDENT Shirley Nga Ching Wong
FILE NUMBER:	105064
HEARING DATES:	9 June 2010
SUBMISSIONS CLOSED:	9 July 2010
DATE OF DECISION:	30 July 2010
BEFORE:	Molloy G - Judicial Member
CATCHWORDS:	Exercise of option
LEGISLATION CITED:	Conveyancing Act 1919.
CASES CITED:	Bella Fruita Pty Limited v. Nyrang Holdings Pty Limited [2000] ACTSC 16 Bowman v. Durham Holdings Pty Limited [1973] HCA 55 Leads Plus Pty Limited v. Kowho Intercontinental Pty Limited [2000] NSWSC 459 Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191 Gilbert J McCaul (Aust) Pty Ltd v. Pitt Club Ltd (1954) 76 WM (NSW)72 Subway Realty v. The Investment #1 Pty Limited [2010] NSWADT 123 Spuds Surf Chatswood Pty Limited v. PT Limited [2007] NSWADT 130
REPRESENTATION:	APPLICANT In person RESPONDENT G Holzman instructed by Michael Jassy & Associates
ORDERS:	1.I vacate all injunctions and urgent interim orders made 6 May 2010, 20 May 2010 and 9 June 2010 2.I dismiss the Application for Original Decision and the Application for Urgent Interim Orders, both filed 28 April 2010 3.I declare that the Applicant has not exercised the option 4.No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions.