Nevine and Nady Basily trading as Chantina Restaurant v G.R.S Crichton and K.G Crichton

[2008] NSWADT 58

CITATION:	Nevine and Nady Basily trading as Chantina Restaurant v G.R.S Crichton and K.G Crichton [2008] NSWADT 58
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Nevine and Nady Basily trading as Chantina Restaurant RESPONDENT G.R.S Crichton and K.G Crichton
FILE NUMBER:	075084
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 January 2008
DATE OF DECISION:	20 February 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Basily and anor v Crichton and anor [2007] NSWADT 288
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	The applicant’s application for payment of interest on bond moneys paid is dismissed.

REASONS FOR DECISION

Introduction

1 On 12 December 2007, the Tribunal published its decision in regard to the lessee applicants, Nevine and Nady Basily (‘Basily’), claim against the lessor respondents, Gregory and Kim Crichton (‘Crichton’): Basily and anor v Crichton and anor [2007] NSWADT 288. Basily sought orders for the payment of moneys pursuant to section 72(1)(a) of the Retail Leases Act 1994 (‘the Act’). By consent the application was dealt with on the papers and the Tribunal ordered Crichton to repay Basily the agent’s fees they had paid to Crichton’s agent, Raine and Horne, Maroubra.

2 The Tribunal also found that Basily’s claim for the payment of interest on what would have been earnt on the security bond amounts paid by Basily to Crichton in accordance with section 47 of the Act had been made out: see at [24] and [29]. However, there was insufficient material before the Tribunal to make a finding as to the amount of interest: see at [29]. At the same time the Tribunal pointed out that the onus was on Basily to put sufficient material before the Tribunal, which established the amount of interest that would have been earnt. As Basily was unrepresented, the Tribunal ordered Basily to file and serve further evidence and submissions in regard to its claim for interest within seven days of publication of the Tribunal’s reasons for decision. Crichton was then given a further seven days to file any evidence or submissions in reply and the matter as set down for directions on 23 January 2008.

3 Ms Crichton filed additional material in accordance with this order, on 17 and 27 December 2007 and 2 January 2008. The file does not contain any further material from Basily.

4 On 23 January 2008, Ms Crichton appeared at the directions hearing. There was no appearance on behalf of Basily. Ms Crichton informed the Tribunal that the agent’s fees had been repaid to Basily and that her position remained the same in that the amount of interest was no more than $2.38. Basily had claimed $1,107.71 on the basis of 4.5 percent compound interest.

5 As the onus is on Basily to prove its loss in regard to their claim for interest, I find that they have failed to put sufficient material before the Tribunal, which establishes their claimed loss. Accordingly, the Tribunal dismisses their claim in this regard.