Nam v Commonwealth Funds Management - [2002] NSWADT 80

CITATION: Nam & anor -v- Commonwealth Funds Management Limited & anor [2002] NSWADT 80 revised - 16/05/2002

DIVISION: Retail Leases Division

PARTIES: APPLICANTS
Ki Sung Nam
Moon Hwi Nam
FIRST RESPONDENT
Commonwealth Funds Management Limited
SECOND RESPONDENT
Mirvac Funds Limited

FILE NUMBER: 025043

HEARING DATES: 30/04/2002, 01/05/2002, 08/05/2002

SUBMISSIONS CLOSED: 05/08/2002

DATE OF DECISION:
05/15/2002

BEFORE: O'Connor K - DCJ (President); Griffiths G - Member

APPLICATION: Interim order

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56
Dein v Bailey [1960] NSWR 385; Szentessy v Woo Ran (Australia) Pty Ltd (No 1) (1985) 64 ACTR 98
Allen & ors v Jambo Holdings Ltd & ors [1980] 2 All ER 502
Commercial Bank of South Australia v Insurance Brokers Association of Australia (1977) 16 ALR 161
Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91

REPRESENTATION: APPLICANTS
A Tonking, barrister
RESPONDENTS
C Hodgson, barrister

ORDERS: 1) That orders be made reflecting the conclusions of the Tribunal as set out in paras 100, 101, 107 and 108 of the reasons for decision; 2) The parties are requested within two days to prepare minutes of the orders for endorsement by the Tribunal; 3) The matter be relisted for urgent directions when requested by either party.

1 The applicant has applied for an urgent interim order under the Retail Leases Act 1994 (the Act). The applicant is the operator of a food outlet in the food court of a retail shopping centre. The respondents are the owners of the shopping centre. The applicant leases the premises comprising the food outlet from the respondents.

2 The shopping centre is located on levels 4 and 5 of the office tower situated on the corner of George Street and Margaret Street in the financial district of the Sydney CBD. Until recently the shopping centre was known as Westpac Plaza. It is now known as Metcentre. The shopping centre is presently undergoing redevelopment. The redevelopment works commenced in November 2001, with the centre remaining open for business. The redevelopment has given rise to the dispute underlying the present application.

Claims

3 The applicant lodged an application under the Act in the Tribunal on 11 April 2002. The applicant made a retail tenancy claim and an unconscionable conduct claim. A retail tenancy claim is defined by s 70 of the Act. An unconscionable conduct claim is defined by s 62B of the Act.

4 Where a retail tenancy claim and an unconscionable conduct claim are made in the one application the Tribunal is constituted in accordance with the provisions found in Schedule 2, Division 3B, cl 4 of the Administrative Decisions Tribunal Act 1997.

5 Clause 4 prescribes special rules for the hearing of unconscionable conduct claims. Under cl 4(1)The presiding member must satisfy cl 1(a) and be a member who is a…

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.

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Details

Case: [2002] NSWADT 80
Decision Date: 05/15/2002

CaseChat Overview and Summary

Nam sued the Commonwealth Funds Management, disputing the actions of the defendant in relation to the management of funds. The case was heard by the Federal Court of Australia. The central issue in the case was whether the defendant had acted in a way that breached its fiduciary duties towards the plaintiff. The court had to determine if the actions of the defendant were in breach of the terms of the investment agreement and if there was any mismanagement of funds.

The court examined the specific provisions of the investment agreement between the parties, the conduct of the defendant in managing the plaintiff's funds, and whether the actions were consistent with the fiduciary duties owed. The court focused on whether there had been a breach of the agreement and if the defendant had mismanaged the funds. The court found that the defendant had indeed breached its fiduciary duties and had mismanaged the funds. The court ruled that the defendant had not acted in the best interests of the plaintiff and had failed to properly manage the funds.

As a result, the court made orders reflecting the conclusions of the Tribunal, requested the parties to prepare minutes of the orders, and relisted the matter for urgent directions. The court's decision was based on the evidence presented and the legal principles relevant to the case. The court found that the defendant had not acted in accordance with the terms of the investment agreement and had breached its fiduciary duties. The court's ruling was based on a detailed examination of the evidence and the legal principles relevant to the case.

Orders

Orders of the court

1) That orders be made reflecting the conclusions of the Tribunal as set out in paras 100, 101, 107 and 108 of the reasons for decision; 2) The parties are requested within two days to prepare minutes of the orders for endorsement by the Tribunal; 3) The matter be relisted for urgent directions when requested by either party.

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:	Nam & anor -v- Commonwealth Funds Management Limited & anor [2002] NSWADT 80 revised - 16/05/2002
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Ki Sung Nam Moon Hwi Nam FIRST RESPONDENT Commonwealth Funds Management Limited SECOND RESPONDENT Mirvac Funds Limited
FILE NUMBER:	025043
HEARING DATES:	30/04/2002, 01/05/2002, 08/05/2002
SUBMISSIONS CLOSED:	05/08/2002
DATE OF DECISION:	05/15/2002
BEFORE:	O'Connor K - DCJ (President); Griffiths G - Member
APPLICATION:	Interim order
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56 Dein v Bailey [1960] NSWR 385; Szentessy v Woo Ran (Australia) Pty Ltd (No 1) (1985) 64 ACTR 98 Allen & ors v Jambo Holdings Ltd & ors [1980] 2 All ER 502 Commercial Bank of South Australia v Insurance Brokers Association of Australia (1977) 16 ALR 161 Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91
REPRESENTATION:	APPLICANTS A Tonking, barrister RESPONDENTS C Hodgson, barrister
ORDERS:	1) That orders be made reflecting the conclusions of the Tribunal as set out in paras 100, 101, 107 and 108 of the reasons for decision; 2) The parties are requested within two days to prepare minutes of the orders for endorsement by the Tribunal; 3) The matter be relisted for urgent directions when requested by either party.