Moussa v Warren

[2012] NSWADT 284

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 returned to Lockhart on about 19 November 2012. Carol picked him up from the Airport and he stayed with the owners in Wagga that night. They discussed the operation of the restaurant and agreed that the Applicant would start running it the following day.

1. Over the following days the Applicant discussed the lease with each of the owners. The Respondent sought legal advice and he requested that his then solicitor draw up a Lease. The Respondent contends that the request was for a lease of short duration as the Hotel was for sale and he did not want to bind any incoming purchaser.

1. The Respondent provided the Applicant with a copy of a draft lease on about 6 December 2012. The Applicant sought his own legal advice and subsequently requested several conditions be incorporated in the Lease. Negotiations then took place between the parties' solicitors in regard to the terms of the proposed lease.

1. The Respondent contends that while the lease negotiations were taking place between solicitors, the owners were concerned about a number of issues in the kitchen - particularly the state of cleanliness of the kitchen and the Applicant's treatment of the staff. They raised those mattes with the Applicant on several occasions and he assured them that they need not worry.

1. On 18 December 2012 the parties agreed upon final terms for a lease. The agreed terms were set out in a letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor. The final draft of the Lease document was posted by the Respondent's solicitor on 19 December 2012, and arrived at the Applicant's solicitor on the morning of 20 December 2012.

1. The owners decided to withdraw the offer to lease on 20 December 2012. That decision was on the basis of concerns regarding issues of cleanliness in the kitchen, complaints made by staff who were casually employed by the Applicant, and the service and manner exhibited towards Hotel patrons who attended the premises for meals and beverages. The owners were concerned that the Applicant's presence was going to do the Hotel and its reputation irreparable harm.

1. Prior to the lunchtime service on 20 December 2012 Carol advised the Applicant that the owners were not going to proceed with the arrangement. The Applicant was offered the opportunity to leave the premises that morning, however he indicated he wished to stay and cook that day. It was agreed that the Applicant and the owners would meet to discuss the matter later in the day.

1. The Applicant cooked dinner that night. The waitress who was rostered to work that night didn't turn up and so the Applicant had to wait on table as well as cook. When the meals were finished, the Applicant went to meet with the owners. He expected to have the meeting then return to clean up the kitchen.

1. That meeting did not take place until after the Hotel trading ended that night. The Respondent contends that during that meeting the Applicant became abusive and aggressive. It is common ground that he was asked to leave the Hotel. The Respondent rang the local Police officer and asked him to remove the Applicant from the premises. The Respondent arranged for the Applicant to stay at a local Motel.

The Applicant's evidence

1. The Applicant gave evidence of the circumstances that lead to him moving to Lockhart and commencing operating the restaurant. He stated that it was important to him that he had a lease to the premises so as to have some security. He outlined the various steps that he took to persuade the owners to agree to the lease and the difficulties that he encountered in that process.

1. He relies on the letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor which he says evidences the terms of the agreement that was ultimately reached. The Applicant concedes that he and the Respondent signed the letter of 18 December, but that Carol did not sign it. He stated that he had raised that issue with his solicitor who was to check on the ownership of the premises to ensure that the lease document correctly identified the parties.

1. The Applicant also gave evidence in relation to the difficulties that he encountered in obtaining staff for the restaurant and attributes the state of the kitchen at that time he was asked to leave to that difficulty.

1. The Applicant seeks an order that will give him possession of the premises immediately. He contends that if he is not permitted to recommence operation of the restaurant he will suffer significant damage and loss of the business that he started.

The Respondent's evidence

1. The Respondent disputes the Applicant's assertion that the parties entered a valid lease to the premises. He also disputes the Applicant's assertion that he developed the restaurant to any significant extent or that he will suffer significant loss if he is not permitted to re-enter the premises. On the contrary, he asserts that the Applicant's presence could result in irreparable harm to the Hotel and its reputation.

1. The owners asserted that at the time the Applicant was asked to leave the state of the Kitchen was such that it would have failed a health inspection and would have been closed down if the Applicant had not been asked to leave.

1. Carol took photos showing the state of the kitchen and those photos were shown at the hearing. Her evidence was that it was apparent that the kitchen had been in that state for a significant period of time - at least a week - and that it was not merely the result of the Applicant not having had time to clean up the kitchen after that night's cooking.

1. The photos that were in evidence support that contention.

1. The Respondent gave evidence that meat and seafood that had been delivered at around 11am on 20 December 2012 had still not been placed in the refrigerator at 2am the following morning. Salami, chicken and seafood in open containers had been sitting on the floor in the kitchen for between 12 and14 hours. He checked the meat to find that racks of lamb had already started to rot.

1. There was also evidence that food stored in the refrigerator was unlabelled and undated and therefore a potential health hazard.

1. The Respondent also asserted that the Applicant did not comply with his obligation to show evidence of public liability insurance or the required food safety supervised certificate.

1. The Respondent contends that the Applicant has demonstrated that he is unable to conduct the restaurant properly, that the premises were unhygienic and potentially dangerous. In the circumstances it is submitted that the Applicant should not be permitted to re-enter the premises.

Discussion

1. The Tribunal's power to make interim orders is found in section 72(4) of the Act:

72 Powers of Tribunal relating to retail tenancy claims

...

(4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.

1. The authorities that have considered the nature of this power establish that the making of an interim order is discretionary. That discretion is to be exercised having regard to the following factors:

• That the Applicant has shown an arguable case for relief
• Causation of the Applicant's position
• Whether there is a suitable form of other remedy available
• Prejudice to the Applicant
• Prejudice to the Respondent
• The financial circumstances of the Applicant
• The economic impact of the orders sought.

1. For a discussion in regard to the various decisions see Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273. See also Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130.

1. For the purposes of determining the application for urgent interim orders I should consider the Applicant's evidence, at its highest, in determining whether he has established a reasonably arguable case for the relief claimed. It is not necessary to "forecast the ultimate result of the case": Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd [1968] 118 CLR 618; [1968] HCA 1.

1. On the material presented I am satisfied that the Applicant has shown that it has an arguable case for relief in the substantive proceedings, but there is significant doubt as to whether or not there exists a lease to the premises. That is a matter that will need to be determined in the substantive matter.

1. Nevertheless, it is my view that the order sought should not be made. In my view, if a lease does exist, there would be an implied term in the lease that the premises are to be maintained in a manner that complies with the applicable health regulations. The evidence before me suggests that the Applicant has failed to meet such a requirement. In that regard, the Applicant has contributed to his position.

1. In the circumstances, I accept that there is a real risk that the Applicant's presence could result in irreparable harm to the Hotel and its reputation.

1. If the Applicant were ultimately successful in his application, damages would be a reasonable form of remedy. In my opinion, the potential prejudice to the Respondent should the application be granted outweighs the potential prejudice to the Applicant.

1. That being the case, it is my view that no urgent interim order should be made.

Order

The application for urgent interim orders is dismissed.

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Decision last updated: 05 April 2013