Kriletich v Dee Why Projects Pty Limited - [2011] NSWADT 109

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Kriletich v Dee Why Projects Pty Limited [2011] NSWADT 109
Hearing dates: 11 April 2011
Decision date: 19 May 2011
Jurisdiction: Retail Leases Division
Before: S Higgins, Deputy President
B Harrison, Non Judicial Member
Decision:
1.The applicant's retail tenancy and unconscionable conduct claim is dismissed.
2.Any party wishing to make an application for costs is to file and serve short written submissions (including the amount of costs sought) with 14 days of the publication of these reasons for decision.
3. In the event a party files submissions in regard to costs, within 14 days of receipt of these submissions, the other party is to file and serve short written submissions in reply.
4. In that event the application for costs is listed for a short hearing at 2pm on 19 July 2011.

Catchwords: Retail lease - leased premises in a newly developed retail shopping centre - alleged pre-lease misrepresentations, misleading conduct and unconscionable conduct - lessor's tenancy fit-out manual stated that exhaust ducts to food tenancies
Legislation Cited: Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987
Retail Leases Act 1994
Trade Practices Act 1974 (Cth)
Cases Cited: Attorney General of New South Wales v World Best Holdings [2005] NSWCA 261; (2005) NSWLR 557
Golden Harvest (Aust) Pty Limited v Paing Pty Limited [2004] NSWCA 85
Golden Harvest (Australia) Pty Ltd v Paing Pty Ltd & Ors (RLD) [2002] NSWADTAP 40
Nicolaou v GPT Re Ltd [2010] NSWADT 151
Category: Principal judgment
Parties: Nick Kriletich (Applicant)
Dee Why Projects Pty Limited (Respondent)
Representation: DH Mitchell (Respondent)
B Gelenosi (Applicant)
Mallesons Stephen Jaques Solicitors (Respondent)

File Number(s): 105108

Reasons for Decision

On 16 July 2010, the applicant, Mr Kriletich, lodged an application with the Tribunal seeking orders, under the Retail Leases Act 1994 (RLA), against the respondent, Dee Why Projects Pty Limited for conduct that it alleged was unconscionable.

Dee Why Projects Pty Limited was the owner and developer of the Dee Why Grand Plaza at 834 Pittwater Road, Dee Why. In June 2009, the applicant approached the agent for the respondent and expressed an interest in leasing a shop in the Plaza. On 28 September 2009, the respondent sent an offer to lease shop 32 of the Plaza to the applicant. Subsequently, on 8 December 2009, the applicant and the respondent entered into an agreement to lease shop 32A of the Plaza. Shop 32A was formerly part of shop 32 of the Plaza. Under the agreement to lease, the lease was for a period of five years and the permitted use of shop 32A was 'Sale of Coffee, Gelato, Juice, pre packaged beverages, foccacias, and the provision of short order caf menu' (see clause 11 and item 11 of the schedule of the agreement to lease).

On 29 July 2010, the applicant commenced trading from shop 32A, after the fit-out of the shop 32A had been completed. It was during the preparation for the fit-out of shop 32A 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.

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Details

Case: [2011] NSWADT 109
Decision Date: 19 May 2011

CaseChat Overview and Summary

The applicant, Kriletich, sought relief from the Supreme Court of New South Wales in relation to their retail tenancy in a shopping centre developed by Dee Why Projects Pty Limited. Kriletich alleged that the respondent had engaged in pre-lease misrepresentations, misleading or deceptive conduct, and unconscionable conduct in relation to the suitability of the premises for their business as a food retailer. Specifically, Kriletich claimed that the respondent misled them about the suitability of exhaust ducts to food tenancies, as stated in the tenancy fit-out manual provided by the respondent.

The primary legal issue before the court was whether the respondent had engaged in misleading or deceptive conduct and unconscionable conduct during the pre-lease negotiations. The court had to examine the conduct of the respondent in providing information to the applicant about the suitability of the premises for the applicant's business as a food retailer. The court also needed to determine whether the respondent's conduct was unconscionable in the circumstances.

The court held that the applicant's claim for relief from their retail tenancy and unconscionable conduct was dismissed. The court found that the respondent had not engaged in misleading or deceptive conduct, and that the information provided to the applicant was not misleading or deceptive in the circumstances. The court also found that the respondent's conduct was not unconscionable. The court noted that the applicant had not taken reasonable steps to verify the information provided by the respondent, and that the applicant had not acted reasonably in relying on the information provided by the respondent.

The court ordered that any party wishing to make an application for costs is to file and serve short written submissions (including the amount of costs sought) within 14 days of the publication of these reasons for decision. If a party files submissions in regard to costs, within 14 days of receipt of these submissions, the other party is to file and serve short written submissions in reply. In that event, the application for costs is listed for a short hearing at 2pm on 19 July 2011.

Orders

Orders of the court

1.The applicant's retail tenancy and unconscionable conduct claim is dismissed.

2.Any party wishing to make an application for costs is to file and serve short written submissions (including the amount of costs sought) with 14 days of the publication of these reasons for decision.

3. In the event a party files submissions in regard to costs, within 14 days of receipt of these submissions, the other party is to file and serve short written submissions in reply.

4. In that event the application for costs is listed for a short hearing at 2pm on 19 July 2011.

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.

Medium Neutral Citation:	Kriletich v Dee Why Projects Pty Limited [2011] NSWADT 109
Hearing dates:	11 April 2011
Decision date:	19 May 2011
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President B Harrison, Non Judicial Member
Decision:	1.The applicant's retail tenancy and unconscionable conduct claim is dismissed. 2.Any party wishing to make an application for costs is to file and serve short written submissions (including the amount of costs sought) with 14 days of the publication of these reasons for decision. 3. In the event a party files submissions in regard to costs, within 14 days of receipt of these submissions, the other party is to file and serve short written submissions in reply. 4. In that event the application for costs is listed for a short hearing at 2pm on 19 July 2011.
Catchwords:	Retail lease - leased premises in a newly developed retail shopping centre - alleged pre-lease misrepresentations, misleading conduct and unconscionable conduct - lessor's tenancy fit-out manual stated that exhaust ducts to food tenancies
Legislation Cited:	Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 Retail Leases Act 1994 Trade Practices Act 1974 (Cth)
Cases Cited:	Attorney General of New South Wales v World Best Holdings [2005] NSWCA 261; (2005) NSWLR 557 Golden Harvest (Aust) Pty Limited v Paing Pty Limited [2004] NSWCA 85 Golden Harvest (Australia) Pty Ltd v Paing Pty Ltd & Ors (RLD) [2002] NSWADTAP 40 Nicolaou v GPT Re Ltd [2010] NSWADT 151
Category:	Principal judgment
Parties:	Nick Kriletich (Applicant) Dee Why Projects Pty Limited (Respondent)
Representation:	DH Mitchell (Respondent) B Gelenosi (Applicant) Mallesons Stephen Jaques Solicitors (Respondent)
File Number(s):	105108