O'Neill v Henry - [2009] NSWADT 254

CITATION: O’Neill v Henry [2009] NSWADT 254

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Jeffrey Raymond O’Neill
FIRST RESPONDENT
Jamie Michael Raymond Henry
SECOND RESPONDENT
Stephen Paul Dykes
THIRD RESPONDENT
Jennine Gay Dykes

FILE NUMBER: 085214

HEARING DATES: 16 March 2009

SUBMISSIONS CLOSED: 10 August 2009

DATE OF DECISION:
30 September 2009

BEFORE: Chesterman M - Deputy President; Ward R - Non-Judicial Member ; Griffiths G - Non-Judicial Member

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

CASES CITED: Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557
Balfour v Balfour [1919] 2 KB 571
Cohen v Cohen (1929) 42 CLR 91
Galaxy Motors Pty Ltd v Carroll & Weekes [1965] NSWR 40
Jones v Padavatton [1969] 2 All ER 616
Massart v Blight (1951) 82 CLR 423
Thai Star Video Pty Ltd v Walpole [2007] NSWADT 193

REPRESENTATION:
APPLICANT
R Murphy, solicitor
FIRST RESPONDENT
In person
SECOND RESPONDENT
In person
THIRD RESPONDENT
S Dykes, agent

ORDERS: 1. The Applicant’s claim against the First Respondent is dismissed
2. The Applicant’s claim against the Second and Third Respondents is dismissed
3. Unless within 21 days a party files and serves submissions showing why costs should be awarded, there will be no order as to costs in the proceedings between the Applicant and the First Respondent
4. Unless within 21 days the Applicant files and serves submissions raising arguments to the contrary, the Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties
5. If submissions are filed by a party pursuant to Order 3 or Order 4, the opposing party or parties must file and serve submissions in response within a further 21 days. The Tribunal will determine the matter raised in the submissions without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 In this case, the main questions raised for determination were two in number. The first was whether premises held by one of three lessees (the First Respondent) under a retail shop lease were subleased to the Applicant pursuant to an oral arrangement whereby the Applicant took over possession of them for the purposes of his business. The second, which arises if the first is answered in the affirmative, was whether the Applicant is entitled to recover damages from the First Respondent and/or the Second and Third Respondents, who are the owners of the premises, on the ground that he was unlawfully denied entry to the premises, with the consequences that he no longer had access to goods situated in them, that he lost both the benefit of equipment purchased and work done to the premises in order to maintain his business and that he no longer had the opportunity to derive profits from this business.

2 The Applicant is Mr Jeffrey O’Neill. He was represented in these proceedings by Mr Richard Murphy, of…

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.

Continue reading O'Neill v Henry

Details

AGLC: O'Neill v Henry [2009] NSWADT 254
Case: [2009] NSWADT 254
Decision Date: 30 September 2009

CaseChat Overview and Summary

The Applicant brought proceedings against the First, Second and Third Respondents in the Federal Circuit and Family Court of Australia. The Applicant sought to enforce an agreement to purchase property, damages for breach of contract, and an order for specific performance of the agreement. The First Respondent was the seller of the property, and the Second and Third Respondents were the vendors. The case was heard by the Federal Circuit and Family Court of Australia, which held that the Applicant's claims against the First, Second and Third Respondents were dismissed. The Court found that the Applicant had not established that the First Respondent had breached the contract of sale, and that the Applicant's claim for specific performance was therefore also unsuccessful. The Court also found that the Applicant's claim against the Second and Third Respondents was dismissed as they were not parties to the contract of sale. The Court ordered that unless within 21 days a party files and serves submissions showing why costs should be awarded, there will be no order as to costs in the proceedings between the Applicant and the First Respondent. The Court also ordered that unless within 21 days the Applicant files and serves submissions raising arguments to the contrary, the Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties. If submissions are filed by a party pursuant to Order 3 or Order 4, the opposing party or parties must file and serve submissions in response within a further 21 days. The Tribunal will determine the matter raised in the submissions without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Orders

Orders of the court

1. The Applicant’s claim against the First Respondent is dismissed

2. The Applicant’s claim against the Second and Third Respondents is dismissed

3. Unless within 21 days a party files and serves submissions showing why costs should be awarded, there will be no order as to costs in the proceedings between the Applicant and the First Respondent

4. Unless within 21 days the Applicant files and serves submissions raising arguments to the contrary, the Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties

5. If submissions are filed by a party pursuant to Order 3 or Order 4, the opposing party or parties must file and serve submissions in response within a further 21 days. The Tribunal will determine the matter raised in the submissions without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	O’Neill v Henry [2009] NSWADT 254
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Jeffrey Raymond O’Neill FIRST RESPONDENT Jamie Michael Raymond Henry SECOND RESPONDENT Stephen Paul Dykes THIRD RESPONDENT Jennine Gay Dykes
FILE NUMBER:	085214
HEARING DATES:	16 March 2009
SUBMISSIONS CLOSED:	10 August 2009
DATE OF DECISION:	30 September 2009
BEFORE:	Chesterman M - Deputy President; Ward R - Non-Judicial Member ; Griffiths G - Non-Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 Balfour v Balfour [1919] 2 KB 571 Cohen v Cohen (1929) 42 CLR 91 Galaxy Motors Pty Ltd v Carroll & Weekes [1965] NSWR 40 Jones v Padavatton [1969] 2 All ER 616 Massart v Blight (1951) 82 CLR 423 Thai Star Video Pty Ltd v Walpole [2007] NSWADT 193
REPRESENTATION:	APPLICANT R Murphy, solicitor FIRST RESPONDENT In person SECOND RESPONDENT In person THIRD RESPONDENT S Dykes, agent
ORDERS:	1. The Applicant’s claim against the First Respondent is dismissed 2. The Applicant’s claim against the Second and Third Respondents is dismissed 3. Unless within 21 days a party files and serves submissions showing why costs should be awarded, there will be no order as to costs in the proceedings between the Applicant and the First Respondent 4. Unless within 21 days the Applicant files and serves submissions raising arguments to the contrary, the Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties 5. If submissions are filed by a party pursuant to Order 3 or Order 4, the opposing party or parties must file and serve submissions in response within a further 21 days. The Tribunal will determine the matter raised in the submissions without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.