Lituma Pty Limited v Jafari - [2005] NSWADTAP 37

Appeal Panel - Internal

CITATION: Lituma Pty Limited v Jafari [2005] NSWADTAP 37

PARTIES: APPELLANT
Lituma Pty Limited
RESPONDENT
Zahra Jafari

FILE NUMBER: 059021

HEARING DATES: 20/06/2005

SUBMISSIONS CLOSED: 06/20/2005

DATE OF DECISION:
07/20/2005

DECISION UNDER APPEAL:
Lituma Pty Limited v Jafari [2005] NSWADT 64

BEFORE: Chesterman M - ADCJ (Deputy President); Donald BG - Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: Claim for assignment of rights under a lease/ declaration lessor not entitled to withhold consent to an assignment of rights - statutory interpretation

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 055016, 055024

DATE OF DECISION UNDER APPEAL: 03/24/2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Law of Property Act 1925 (UK)
Retail Leases Act 1994

CASES CITED: Holden v Blaiklock [1974] 2 NSWLR 262
Lituma Pty Ltd v Jafari [2005] NSWADT 64
Plymouth Corporation v Harvey [1971] 1 All ER 623

REPRESENTATION: A Monzo, barrister
F Hicks, barrister

ORDERS: 1. Appeal dismissed; 2. Vary the Tribunal's Order (2), made on 24 March 2005, by deleting 'make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm' and substituting 'comply with any of the provisions of cl.1(b), (c) or (d) of the Deed'; 3. Vary the Tribunal's Order (4) by deleting 'on 7 April 2005 at 11 a.m.' and substituting 'at a date and time to be fixed by the Registry and communicated to the parties'; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of this appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.

Introduction

1 This appeal raises a difficult question of interpretation of a Deed of Release entered into between a lessor of retail shop premises at Willoughby, the initial lessee and an assignee of the lease, who was also the purchaser of the business formerly carried on by the lessee in the premises. The lease was governed by the Retail Leases Act 1994.

2 In these appeal proceedings, the lessor, Lituma Pty Ltd (‘Lituma’), challenged rulings made by the Tribunal, constituted by Ms S Higgins, Judicial Member, by way of determination of preliminary issues arising in two applications. These were (a) an application that Lituma had brought against the assignee, Mrs Zahra Jafari (file 055024) and (b) an application brought by Mrs Jafari against Lituma (file 055016). The Tribunal’s decision was delivered on 24 March 2005 (Lituma Pty Ltd v Jafari [2005] NSWADT 64). Its rulings were in favour of Mrs Jafari.

3 Before describing these rulings, we must summarise the events leading up to the execution of the Deed of Release (‘the Deed’) on 26 November 2004 and the instigation of the present proceedings. These events…

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.

Keep reading for free

Create a free CaseChat account to read Lituma Pty Limited v Jafari and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWADTAP 37
Decision Date: 07/20/2005

CaseChat Overview and Summary

Lituma Pty Limited was the plaintiff and Jafari the defendant in a dispute concerning the assignment of rights under a lease. The matter was heard in the New South Wales Court of Appeal. The plaintiff sought to assign its rights under a lease to a third party, which the defendant, as the lessor, refused to consent to. The plaintiff appealed against a decision of the Administrative Decisions Tribunal, which had determined that the lessor was entitled to withhold its consent to the assignment.

The primary legal issue before the court was whether the lessor could lawfully withhold its consent to the assignment of the lease. The court needed to interpret the relevant statutory provisions, specifically the Retail Leases Act 1994, to determine the rights and obligations of the parties. The court also had to consider whether the Tribunal's orders were appropriate in light of the statutory framework.

The court found that the statutory provisions did not support the Tribunal's conclusion that the lessor could withhold its consent to the assignment. The court held that the statutory scheme provided for the assignment of rights under a lease without the need for the lessor's consent. Consequently, the court dismissed the appeal and varied the Tribunal's orders to reflect the correct interpretation of the relevant statutory provisions. The court also made orders regarding the costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed; 2. Vary the Tribunal's Order (2), made on 24 March 2005, by deleting 'make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm' and substituting 'comply with any of the provisions of cl.1(b), (c) or (d) of the Deed'; 3. Vary the Tribunal's Order (4) by deleting 'on 7 April 2005 at 11 a.m.' and substituting 'at a date and time to be fixed by the Registry and communicated to the parties'; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of this appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.

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:	Lituma Pty Limited v Jafari [2005] NSWADTAP 37
PARTIES:	APPELLANT Lituma Pty Limited RESPONDENT Zahra Jafari
FILE NUMBER:	059021
HEARING DATES:	20/06/2005
SUBMISSIONS CLOSED:	06/20/2005
DATE OF DECISION:	07/20/2005
DECISION UNDER APPEAL:	Lituma Pty Limited v Jafari [2005] NSWADT 64
BEFORE:	Chesterman M - ADCJ (Deputy President); Donald BG - Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	Claim for assignment of rights under a lease/ declaration lessor not entitled to withhold consent to an assignment of rights - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	055016, 055024
DATE OF DECISION UNDER APPEAL:	03/24/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Law of Property Act 1925 (UK) Retail Leases Act 1994
CASES CITED:	Holden v Blaiklock [1974] 2 NSWLR 262 Lituma Pty Ltd v Jafari [2005] NSWADT 64 Plymouth Corporation v Harvey [1971] 1 All ER 623
REPRESENTATION:	A Monzo, barrister F Hicks, barrister
ORDERS:	1. Appeal dismissed; 2. Vary the Tribunal's Order (2), made on 24 March 2005, by deleting 'make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm' and substituting 'comply with any of the provisions of cl.1(b), (c) or (d) of the Deed'; 3. Vary the Tribunal's Order (4) by deleting 'on 7 April 2005 at 11 a.m.' and substituting 'at a date and time to be fixed by the Registry and communicated to the parties'; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of this appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.