Naim v PBPSF Pty Ltd - [2008] NSWADT 202

CITATION: Naim v PBPSF Pty Ltd [2008] NSWADT 202

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Adel Naim
RESPONDENT
PBPSF Pty Ltd
APPLICANT
PBPSF Pty Ltd
RESPONDENT
Adel Naim

FILE NUMBER: 075016, 075060

HEARING DATES: 18 February 2008

SUBMISSIONS CLOSED: 20 March 2008

DATE OF DECISION:
22 July 2008

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Retail Tenancy Claims

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994
Conveyancing Act 1919
A New Tax System (Goods and Services Tax) Act 1999 (Cth)Corporations Act 2001 (Cth)
Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004

CASES CITED: Sterling Guardian Pty Ltd v Commissioner of Taxation (2006) 149 FCR 255
Petelin v Deger Investments Pty Ltd (1976) 133 CLR 538
Cronulla Newsagency Pty Ltd v Pizzata [2002] NSWADT 17
Wanice Pty Ltd v Bocove Pty Ltd (RLD) [2003] NSWADTAP 24
Brandonia Pty Ltd v Lenola Pty Ltd [2006] NSWADT 319
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387
Makhoul v Petria Pty Ltd [2004] NSWADT 51
Petria Pty Limited v Makhoul [2004] NSWADTAP 47
Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354
Dykes and Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 26
Davies v Lyndhurst Developments Pty Ltd [2000] NSWADT 196
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81

REPRESENTATION:
Applicant/Respondent
P Kirsop, solicitor
Respondent/Applicant
B Zipser, barrister

ORDERS: Application No 075016
The Tribunal declares that:
1. The Respondent/Lessor is not entitled under the Lease to apply the margin scheme to the GST payable in respect of the sale of the premises to the Applicant consequent on the Applicant’s exercise of the option to purchase
2. The Respondent/Lessor is to pay the Applicant’s costs of the proceedings, as agreed or assessed.
Application No 0750601
Applicant/Lessor’s application dismissed

REASONS FOR DECISION
1 This dispute is between the lessee and lessor of retail shop premises. Both parties have filed claims for relief under the Retail Leases Act 1994 (RL Act). Attempts at mediation have been unsuccessful.

2 Relevant documentation, commencing in 2000, was placed in evidence. Affidavit and oral evidence was given by the lessee, Mr Naim, and by a director of the lessor, Mr McNaughton. Subsequent to the hearing, the lessee, the lessor and the lessee in reply filed written submissions.

Background

3 The lessor is PBPSF Pty Ltd and the lessee is Mr Adel Naim. The premises are located at ground floor, 16/18 Watt Street, Newcastle, and the business conducted is that of a café known as ‘Café 16’. ‘PBPSF’ stands for ‘Palmer Bruyn & Parker Superannuation Fund’. Palmer Bruyn & Parker is a firm of surveyors.

4 In 1999, Mr Naim expressed interest in taking up a tenancy at No 18 after learning that it was to be redeveloped. Numbers 18 and 20 Watt Street were in 1999 owned by the fund.

5 He commenced negotiations with Mr Bill Parker, a director, to lease one of the ground level retail units, unit 16. The negotiations were completed via the…

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 Naim v PBPSF Pty Ltd 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: [2008] NSWADT 202
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the case of Naim v PBPSF Pty Ltd, the Applicant, Mr. Naim, sought a declaration from the Civil and Administrative Tribunal of New South Wales regarding the application of the margin scheme to the GST payable in relation to the sale of premises. The Respondent, PBPSF Pty Ltd, was the Lessor of the property. The dispute arose when Mr. Naim, as the tenant, exercised his option to purchase the premises and the Lessor applied the margin scheme to the GST payable on the sale. Mr. Naim argued that the application of the margin scheme was improper, and he sought a declaration to this effect.

The legal issues before the Tribunal were whether the Respondent was entitled to apply the margin scheme to the GST payable in respect of the sale of the premises, and if not, what relief should be granted to Mr. Naim. The Tribunal had to interpret the relevant statutory provisions and case law concerning the margin scheme and its applicability to the sale of the premises. Additionally, the Tribunal considered the contractual terms between the parties and the equitable principles that may apply to the situation.

The Tribunal found that the Respondent was not entitled to apply the margin scheme to the GST payable in respect of the sale of the premises. The Tribunal concluded that the statutory provisions did not permit the application of the margin scheme in this context, and the contractual terms did not support the Respondent's position. The Tribunal also considered the equitable principle of unconscionability, which favoured Mr. Naim's position. As a result, the Tribunal dismissed the Respondent's application and granted Mr. Naim's relief as sought. The Tribunal ordered that the Respondent pay Mr. Naim's costs of the proceedings, as agreed or assessed.

Orders

Orders of the court

Application No 075016 The Tribunal declares that: 1. The Respondent/Lessor is not entitled under the Lease to apply the margin scheme to the GST payable in respect of the sale of the premises to the Applicant consequent on the Applicant's exercise of the option to purchase 2. The Respondent/Lessor is to pay the Applicant's costs of the proceedings, as agreed or assessed. Application No 0750601 Applicant/Lessor's application dismissed

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:	Naim v PBPSF Pty Ltd [2008] NSWADT 202
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Adel Naim RESPONDENT PBPSF Pty Ltd APPLICANT PBPSF Pty Ltd RESPONDENT Adel Naim
FILE NUMBER:	075016, 075060
HEARING DATES:	18 February 2008
SUBMISSIONS CLOSED:	20 March 2008
DATE OF DECISION:	22 July 2008
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Retail Tenancy Claims
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994 Conveyancing Act 1919 A New Tax System (Goods and Services Tax) Act 1999 (Cth)Corporations Act 2001 (Cth) Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004
CASES CITED:	Sterling Guardian Pty Ltd v Commissioner of Taxation (2006) 149 FCR 255 Petelin v Deger Investments Pty Ltd (1976) 133 CLR 538 Cronulla Newsagency Pty Ltd v Pizzata [2002] NSWADT 17 Wanice Pty Ltd v Bocove Pty Ltd (RLD) [2003] NSWADTAP 24 Brandonia Pty Ltd v Lenola Pty Ltd [2006] NSWADT 319 Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387 Makhoul v Petria Pty Ltd [2004] NSWADT 51 Petria Pty Limited v Makhoul [2004] NSWADTAP 47 Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354 Dykes and Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 26 Davies v Lyndhurst Developments Pty Ltd [2000] NSWADT 196 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
REPRESENTATION:	Applicant/Respondent P Kirsop, solicitor Respondent/Applicant B Zipser, barrister
ORDERS:	Application No 075016 The Tribunal declares that: 1. The Respondent/Lessor is not entitled under the Lease to apply the margin scheme to the GST payable in respect of the sale of the premises to the Applicant consequent on the Applicant’s exercise of the option to purchase 2. The Respondent/Lessor is to pay the Applicant’s costs of the proceedings, as agreed or assessed. Application No 0750601 Applicant/Lessor’s application dismissed