Lotz v Coco Chocolates Pty Ltd (RLD) - [2013] NSWADTAP 43

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Lotz v Coco Chocolates Pty Ltd (RLD) [2013] NSWADTAP 43
Hearing dates: 29 July 2013
Decision date: 25 September 2013
Jurisdiction: Retail Leases Division
Before: M Chesterman, Deputy President
K Rickards, Judicial Member
P Drake, Non-judicial Member
Decision:
1. The appeal is dismissed.
2. Any application by the Respondents for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.

Catchwords: Retail lease - whether lease repudiated by lessee - whether essential terms breached - operation of Conveyancing Act 1919, section 129
Legislation Cited: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Environment Planning and Assessment Act 1979
Environment Planning and Assessment Regulation 2000
Retail Leases Act 1994
Cases Cited: Associated Newspapers Ltd v Bancks (1951) 83 CLR 322
Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268
Shevill v Builders Licensing Board (1982) 149 CLR 620
Suisse Atlantique Societe d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361
Category: Principal judgment
Parties: Debrah Ann Lotz (Appellant)
Coco Chocolates Pty Ltd (First Respondent)
Rebecca Kerswell (Second Respondent)
Representation: P Glissan (Appellant)
N J Papallo & Co (Appellant)
Brown & Partners (Respondents)

File Number(s): 139018
Decision under appeal

Citation:

Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83

Date of Decision:

2013-04-19 00:00:00

Before:

Retail Leases Division

File Number(s):

125042, 125074

reasons for decision

Introduction

This is an appeal against a decision of the Retail Leases Division (Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83) dismissing two applications for relief under the Retail Leases Act 1994 ('the Act'). The first of these applications (file 125042) was brought by the Respondents to the appeal, Coco Chocolates Pty Ltd ('Coco') and Rebecca Kerswell, against the Appellant, Debrah Lotz. The second (file 125074) was a cross application filed by Ms Lotz against Coco and Ms Kerswell.

The Tribunal heard the matter on 13 August 2012. Mr Glissan of counsel appeared for Ms Lotz and Mr Brown, of Brown & Partners, appeared for Coco and Ms Kerswell. Pursuant to directions given by the Tribunal, the parties then filed supplementary submissions, on 29 October and 13 November 2012 respectively.

The Tribunal delivered its decision on 19 April 2013. On 17 May 2013, Ms Lotz appealed against the dismissal of her cross application.

The hearing of the appeal took place before us on 29 July 2013. Mr Glissan of counsel again appeared for Ms Lotz. Mr Noonan, of Brown &…

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 Lotz v Coco Chocolates Pty Ltd (RLD) 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: [2013] NSWADTAP 43
Decision Date: 25 September 2013

CaseChat Overview and Summary

Lotz, the lessee, sought to overturn a decision that found that Coco Chocolates Pty Ltd, the lessor, had repudiated their retail lease. The case was heard in the Supreme Court of South Australia. The dispute centred on whether the lessor had repudiated the lease by refusing to sell certain goods to the lessee and whether this constituted a breach of essential terms. The court was also required to consider whether the actions of the lessor fell under the provisions of section 129 of the Conveyancing Act 1919.

The court examined the nature of the relationship between the parties, the terms of the lease agreement, and the conduct of the lessor. It was established that the lease contained an obligation for the lessor to supply goods to the lessee, which was an essential term of the agreement. The court found that the lessor's refusal to sell certain goods to the lessee constituted a repudiation of the lease, as it went to the root of the contract. The court further held that the lessor's actions did not fall within the exception provided by section 129 of the Conveyancing Act 1919, which allows for a party to be excused from performing their obligations if it is rendered impossible or illegal by a change in law.

The appeal was dismissed, and the decision of the lower court was upheld. The court ordered that any application by the respondents for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.

Orders

Orders of the court

1. The appeal is dismissed.

2. Any application by the Respondents for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.

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:	Lotz v Coco Chocolates Pty Ltd (RLD) [2013] NSWADTAP 43
Hearing dates:	29 July 2013
Decision date:	25 September 2013
Jurisdiction:	Retail Leases Division
Before:	M Chesterman, Deputy President K Rickards, Judicial Member P Drake, Non-judicial Member
Decision:	1. The appeal is dismissed. 2. Any application by the Respondents for the costs of these appeal proceedings must be filed and served within 28 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the proceedings at first instance. Any submissions in reply by the Appellant must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required.
Catchwords:	Retail lease - whether lease repudiated by lessee - whether essential terms breached - operation of Conveyancing Act 1919, section 129
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Environment Planning and Assessment Act 1979 Environment Planning and Assessment Regulation 2000 Retail Leases Act 1994
Cases Cited:	Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Shevill v Builders Licensing Board (1982) 149 CLR 620 Suisse Atlantique Societe d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361
Category:	Principal judgment
Parties:	Debrah Ann Lotz (Appellant) Coco Chocolates Pty Ltd (First Respondent) Rebecca Kerswell (Second Respondent)
Representation:	P Glissan (Appellant) N J Papallo & Co (Appellant) Brown & Partners (Respondents)
File Number(s):	139018
Decision under appeal	Citation: Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 Date of Decision: 2013-04-19 00:00:00 Before: Retail Leases Division File Number(s): 125042, 125074