Appeal Panel - Internal
CITATION: O'Neill v Henry (RLD) [2010] NSWADTAP 40 PARTIES: APPELLANT
RESPONDENT
Jeffrey Raymond O'Neill
Jamie Michael Raymond HenryFILE NUMBER: 099066 HEARING DATES: 10 February 2010 SUBMISSIONS CLOSED: 10 February 2010
DATE OF DECISION:
9 June 2010BEFORE: O'Connor K - DCJ (President); Molloy G - Judicial Member; Weule B - Non-Judicial Member CATCHWORDS: Retail Leases – Appeal – Retail Tenancy Claim – Breach proven – No award of damages – Principles – Appeal allowed in part – Unconscionable Conduct Claim – Rejected – Relevant Considerations – Claim upheld – Damages – Not granted DECISION UNDER APPEAL: O'Neill v Henry [2009] NSWADT 254 FILE NUMBER UNDER APPEAL: 085214 DATE OF DECISION UNDER APPEAL: 09/30/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994CASES CITED: Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Burns v M.A.N. Automotive (Aust) Pty Limited (1986) 161 CLR 653
Chaplin v Hicks [1911] 2 KB 796
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Cripps v. G & M Dawson Pty Ltd [2006] NSWCA 81
Czarnikow v Koufos [1969] 1 AC 350
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Howe v Teefy (1927) 27 SR (NSW) 301
Jones v Schiffman (1971) 124 CLR 303
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
O’Neill v Henry (No 2) [2009] NSWADT 294
O’Neill v Henry [2009] NSWADT 254
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625
Robb Evans of Robb Evans & Associates v European Bank Ltd [2009] NSWCA 67
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Rucom v Multiplex [2010] NSWADT 1
Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd (No 2) [2002] NSWSC 7
Tennant v Moukhlina (No 2) [2009] NSWADTAP 74
Trust Company of Australia Ltd v. Craig [2005] NSWADT 65
Wenham v Ella (1972) 127 CLR 454
Worsfold v. De Groede [2002] NSWADT 273REPRESENTATION: APPELLANT
RESPONDENT
R Murphy, Patey and Murphy
No appearanceORDERS: 1. Appeal allowed.
2. Leave granted to extend appeal to the merits.
3. In respect of the Retail Tenancy Claim, Respondent to pay the Appellant $6,320.00 by way of monetary compensation.
4. In respect of the Unconscionable Conduct Claim, Tribunal’s order of dismissal set aside.
5. Finding substituted that the Respondent engaged in unconscionable conduct within the meaning of s 62B of the Retail Leases Act.
6. The Appeal Panel declines to make any award of damages as a result of the unconscionable conduct.
7. Appellant to file and serve submissions as to costs within 14 days; Respondent to file and serve reply within a further 14 days. Decision to be made without further hearing, on the papers, as permitted by the Administrative Decisions Tribunal…
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- AGLC
- O'Neill v Henry (RLD) [2010] NSWADTAP 40
- Case
- [2010] NSWADTAP 40
- Decision Date
CaseChat Overview and Summary
The case of O'Neill v Henry (RLD) involved a dispute between the Appellant, O'Neill, and the Respondent, Henry. The Appellant, a retail tenant, alleged that the Respondent, the landlord, breached their lease agreement and engaged in unconscionable conduct under the Retail Leases Act. The matter was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the court. The court was required to determine whether the AAT correctly identified the breaches of the lease agreement, whether the Respondent engaged in unconscionable conduct, and whether the AAT was correct in not awarding damages for the unconscionable conduct.
The court found that the AAT had correctly identified breaches of the lease agreement by the Respondent. However, the court held that the AAT erred in not awarding damages for the unconscionable conduct. The court substituted the AAT’s order of dismissal with a finding that the Respondent engaged in unconscionable conduct under the Retail Leases Act. Despite this finding, the court declined to award damages, as it considered the Appellant had not suffered any financial loss as a result of the unconscionable conduct.
The court allowed the appeal in part, setting aside the AAT's order dismissing the unconscionable conduct claim and substituting it with a finding of unconscionable conduct. The court ordered the Respondent to pay the Appellant $6,320.00 by way of monetary compensation for the breach of the lease agreement. The court also ordered that the Appellant file and serve submissions as to costs within 14 days, with the Respondent to file and serve a reply within a further 14 days. The decision on costs was to be made without further hearing, on the papers, as permitted by the Administrative Decisions Tribunal Act 1997.
The court found that the AAT had correctly identified breaches of the lease agreement by the Respondent. However, the court held that the AAT erred in not awarding damages for the unconscionable conduct. The court substituted the AAT’s order of dismissal with a finding that the Respondent engaged in unconscionable conduct under the Retail Leases Act. Despite this finding, the court declined to award damages, as it considered the Appellant had not suffered any financial loss as a result of the unconscionable conduct.
The court allowed the appeal in part, setting aside the AAT's order dismissing the unconscionable conduct claim and substituting it with a finding of unconscionable conduct. The court ordered the Respondent to pay the Appellant $6,320.00 by way of monetary compensation for the breach of the lease agreement. The court also ordered that the Appellant file and serve submissions as to costs within 14 days, with the Respondent to file and serve a reply within a further 14 days. The decision on costs was to be made without further hearing, on the papers, as permitted by the Administrative Decisions Tribunal Act 1997.
Orders
Orders of the court
1. Appeal allowed.
2. Leave granted to extend appeal to the merits.
3. In respect of the Retail Tenancy Claim, Respondent to pay the Appellant $6,320.00 by way of monetary compensation.
4. In respect of the Unconscionable Conduct Claim, Tribunal’s order of dismissal set aside.
5. Finding substituted that the Respondent engaged in unconscionable conduct within the meaning of s 62B of the Retail Leases Act.
6. The Appeal Panel declines to make any award of damages as a result of the unconscionable conduct.
7. Appellant to file and serve submissions as to costs within 14 days; Respondent to file and serve reply within a further 14 days. Decision to be made without further hearing, on the papers, as permitted by the Administrative Decisions Tribunal Act 1997, s 76.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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