Moussa v Warren

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Moussa v Warren [2012] NSWADT 284
Hearing dates:	28 December 2012
Decision date:	28 December 2012
Jurisdiction:	Retail Leases Division
Before:	S Montgomery, Judicial Member
Decision:	The application for urgent interim order is dismissed.
Catchwords:	Retail Tenancy Claim - application for urgent interim order
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273 Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd [1968] 118 CLR 618; [1968] HCA 1. Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130
Category:	Interlocutory applications
Parties:	Nehad Moussa (Applicant) John Warren (Respondent)
Representation:	N Moussa, (Applicant in person) J Warren, (Respondent in person)
File Number(s):	125184

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for an urgent interim order brought by Nehad Moussa ("the Applicant") under the Retail Leases Act 1994 ("the Act ") in relation the restaurant ("the premises") at the Commercial Hotel, Lockhart ("the Hotel").

1. The Respondent is a joint owner of the Hotel, with Ms Carol Warren ("Carol")

1. The Applicant seeks an order that the Respondent give him possession of the premises immediately.

1. The Applicant contends that he was in possession of the premises from about 20 November 2012. He further contends that the Respondent agreed to grant him a lease to the premises and that the terms of the lease are set out in a letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor.

1. The Respondent denies that the Applicant had a lease to the premises. However, in the event that the Tribunal finds that a lease did exist, the Respondent contends that the Applicant should not be permitted to return to the premises.

The hearing of the interim application

1. The matter came before me for urgent hearing on Friday 28 December 2012. On that occasion I was satisfied that mediation was unlikely to succeed and that the matter should proceed in the Tribunal. The matter was heard and determined and I gave brief reasons for my decision to refuse the application. The Applicant has sought written reasons for the decision and these are now provided.

Background

1. It is not in dispute that in October 2012 the Respondent and Carol ("the owners") advertised the sale of the Hotel, either as a freehold or leasehold. The Applicant responded to that advertisement. After discussion with the owners, the Applicant travelled from Melbourne to Lockhart in order to assess the Hotel in order to decide whether or not he was interested in purchasing it. He arrived at the Hotel on about 11 November 2012.

1. The Applicant contends that the owners suggested to him that he could lease the restaurant with a view to buying the whole hotel business. It is common ground that shortly after his arrival in Lockhart the Applicant commenced running the restaurant.

1. The Applicant returned to Melbourne on about 15 November 2012 and…