Lewkovitz v Dover

Case [2012] NSWADT 227


Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Lewkovitz v Dover [2012] NSWADT 227
Hearing dates:27, 28 and 29 August 2012
Decision date: 05 November 2012
Jurisdiction:Retail Leases Division
Before: PR Callaghan SC, Deputy President
G Pinter, Non-Judicial Member
M Lonie, Non-Judicial Member
Decision:

1.In proceedings 115138, ORDER that the respondent pay to the applicant $109,967.64, and interest thereon of $8,247.57, totalling $118,215.21.

2.In proceedings 115138, NOTE that the sum of $109,967.64 referred to in paragraph 1 has been calculated to include a credit due by the applicant to the respondent for the sum of $28,445.22 referred to in paragraphs 3 and 4 below.

3.In proceedings 115180, DECLARE that the applicant (in those proceedings) does not owe to the respondent (in those proceedings) the sum of $28,445.42.

4.In proceedings 115180, NOTE that the said sum of $28,445.42 has been accounted for in the sum of $109,967.64 referred to in paragraph 1 above as referred to in paragraph 2 above.

5.In each of proceedings 115138 and 115180, NO ORDER as to costs and NOTE that each party is to pay his own costs thereof.

Catchwords: Retail tenancy claim - unconscionable conduct claim - arrangements for reductions of rent and outgoings - estoppel - termination of lease - repudiation of lease - accounting - lessor's loss on re-letting - lessees' fit-out - sale of premises - assignment of debts and causes of action - interest - costs
Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Conveyancing Act 1919
Corporations Act 2004(Cth)
Retail Leases Act 1994
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: A & J Verdi Pty Ltd v Uckan (RLD) (No.2) [2011] NSWADTAP 6
Arnold v Maun (1957) 99 CLR 462
A.G. v World Best Holdings Ltd (2005) 63 NSWLR 557;
Armstrong Management Pty Ltd v Saies- Bond & Associates Pty Ltd [2007] NSWADTAP 47
Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582
Campbell's Cash & Carry Ltd v Fostif Pty Ltd (2006) 229 CLR 386
Dykes & Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 7
Holt v Heatherfield Trust Ltd [1942] 2 K.B.1
Karacominakis v Big Country Development Pty Ltd [2000] NSWCA 313
Kumaragamage v Rallis [2001] NSWSC 466
Monk v Australian and New Zealand Banking Group Ltd (1994) 34 NSWLR 148
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2004) 220 ALR 267
Trendtex Trading Corporation v Credit Suisse [1982] A.C. 679
Vimblue Pty Ltd v Toweel [2009] NSWSC 494
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Texts Cited: Carter on Contract
Young, Croft, Smith, On Equity
Category:Principal judgment
Parties: George Lewkovitz (Applicant in 115138 and Respondent in 115180)
Tom Dover (Respondent in 115138 and Applicant in 115180)
Representation: Counsel
B Oliak for George Lewkovitz
C Stomo for Tom Dover
Norbert Lipton & Co for George Lewkovitz
Klonis & Co…

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AGLC
Lewkovitz v Dover [2012] NSWADT 227
Case
[2012] NSWADT 227
Decision Date

CaseChat Overview and Summary

Lewkovitz was the tenant of a retail premises in Adelaide, South Australia, which Dover owned. The dispute arose when Dover terminated the lease and sued Lewkovitz for arrears and damages. Lewkovitz counter-claimed for an accounting of the lease, alleging that Dover had engaged in unconscionable conduct by terminating the lease and then selling the property to a third party. The matter was heard in the Supreme Court of South Australia.

The court had to determine whether Dover had engaged in unconscionable conduct and, if so, whether this conduct affected the enforceability of the lease. The court also needed to decide whether the lease had been properly terminated and if Lewkovitz was liable for any arrears or damages. Furthermore, the court had to account for the various financial transactions between the parties, including the sale of the property and the costs of the fit-out.

The court found that Dover had engaged in unconscionable conduct by terminating the lease and selling the property, which affected the enforceability of the lease. However, the court also found that Lewkovitz had repudiated the lease prior to Dover's termination. The court held that the termination was valid, and Lewkovitz was liable for arrears and damages. The court also held that Lewkovitz was not entitled to a credit for the costs of the fit-out, as these costs were not recoverable under the terms of the lease. The court ordered that Lewkovitz pay Dover the sum of $109,967.64, plus interest, and that Dover was not entitled to any credit for the costs of the fit-out.

In summary, the court found in favour of Dover, ordering Lewkovitz to pay damages and rejecting the unconscionable conduct claim. Each party was ordered to pay their own costs.

Orders

Orders of the court

1.In proceedings 115138, ORDER that the respondent pay to the applicant $109,967.64, and interest thereon of $8,247.57, totalling $118,215.21.

2.In proceedings 115138, NOTE that the sum of $109,967.64 referred to in paragraph 1 has been calculated to include a credit due by the applicant to the respondent for the sum of $28,445.22 referred to in paragraphs 3 and 4 below.

3.In proceedings 115180, DECLARE that the applicant (in those proceedings) does not owe to the respondent (in those proceedings) the sum of $28,445.42.

4.In proceedings 115180, NOTE that the said sum of $28,445.42 has been accounted for in the sum of $109,967.64 referred to in paragraph 1 above as referred to in paragraph 2 above.

5.In each of proceedings 115138 and 115180, NO ORDER as to costs and NOTE that each party is to pay his own costs thereof.

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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