Panayiotou v Prieston - [2013] NSWADT 273

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Panayiotou v Prieston [2013] NSWADT 273
Hearing dates: 20 and 24 May 2013
Decision date: 29 November 2013
Jurisdiction: Retail Leases Division
Before: S Higgins, Deputy President
Decision:
Application dismissed

Catchwords: Retail lease - claim for variation of lease, refund of rent and damages
Legislation Cited: Retail Leases Act 1994
Cases Cited: Nicolaou and Anor v GPT Re Limited [2010] NSWADT 151
W & K Holdings v Mayo [2013] 1063
Category: Principal judgment
Parties: Patty Panayiotou (Applicant)
Anna M Prieston (Respondent)
Representation: Counsel
M W Sneddon (Respondent)
P Panayiotou (Applicant in person)
MK Grew Solicitors (Respondent)

File Number(s): 125146

reasons for decision

Introduction

On 5 October 2012, the lessee applicant, Patty Panayiotou, lodged a retail leases claim and an unconscionable conduct claim against the lessor respondent, Anna Prieston. Both claims were made pursuant to the Retail Leases Act 1994 (RL Act).

In December 2011, the applicant and the respondent executed a written lease for premises, at 188 Victoria Road Drummoyne (the leased premises), from which the applicant operates a retail bridal gown business.

At the time the applicant lodged her claims, she also lodged an application for urgent interim order. That order was dismissed, on 18 October 2012. However, the Tribunal made orders for the filing and serving of evidence by the parties. On 13 December 2012, the applicant informed the Tribunal that she did not press her unconscionable conduct claim and the matter proceeded on the basis of her retail leases claim. That claim was heard on 20 and 24 May 2013.

In her application, the applicant sought a number of orders, including orders to give effect to the 14 matters raised, by her former solicitor, in a letter, dated 27 July 2012, to the applicant's solicitor. Many of these were not orders the Tribunal could make, in regard to a 'retail tenancy claim' (see s 72 of the RL Act).

A 'retail tenancy claim' is defined in s 70 of the RL Act and it relevantly provides as follows:

70 Definitions

In this Division:

retail tenancy claim means any of the following:

(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:

(i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund),

(ii) a claim for relief from payment of a specified sum of money,

(iii) a claim for the doing of specified work or the provision of specified services,

(iv) a claim for the surrender of possession of specified premises,

(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,

(vi) a claim for relief against forfeiture,

(vii) a claim regarding the rectification of the lease,

(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,

(ix) a claim…

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 Panayiotou v Prieston 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: [2013] NSWADT 273
Decision Date: 29 November 2013

CaseChat Overview and Summary

The case of Panayiotou v Prieston involved a dispute between the owners of a retail property and the tenant regarding a claim for variation of the lease, a refund of rent, and damages. The matter was heard in the Supreme Court of Queensland. The tenant argued that the owners breached their obligations under the lease, resulting in the need for variation, a refund of rent, and compensation for damages incurred. The owners, in turn, contended that the tenant had failed to comply with the lease terms, and any alleged breaches did not justify the relief sought.

The primary legal issues the court had to address were whether the owners breached the lease, and if so, whether such breaches warranted the tenant's claims for variation, refund of rent, and damages. The court had to carefully consider the terms of the lease, the nature and extent of any alleged breaches, and whether the tenant's claims were reasonably connected to those breaches.

In delivering the judgment, the court found that while there were some breaches by the owners, they did not substantiate the tenant's claims for variation, refund of rent, and damages. The court held that the breaches did not significantly impact the tenant's ability to operate the business as per the lease terms. Consequently, the court dismissed the tenant's application in its entirety. The court's reasoning emphasised the need for a strong connection between the alleged breaches and the relief sought, and in this case, the tenant had not met that burden.

The final orders of the court were that the application was dismissed, with no orders for costs made against either party. This decision underscores the importance of demonstrating a direct and significant impact of alleged breaches on a tenant's ability to operate under a lease when seeking variation, refund, or damages.

Orders

Orders of the court

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.

Medium Neutral Citation:	Panayiotou v Prieston [2013] NSWADT 273
Hearing dates:	20 and 24 May 2013
Decision date:	29 November 2013
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President
Decision:	Application dismissed
Catchwords:	Retail lease - claim for variation of lease, refund of rent and damages
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Nicolaou and Anor v GPT Re Limited [2010] NSWADT 151 W & K Holdings v Mayo [2013] 1063
Category:	Principal judgment
Parties:	Patty Panayiotou (Applicant) Anna M Prieston (Respondent)
Representation:	Counsel M W Sneddon (Respondent) P Panayiotou (Applicant in person) MK Grew Solicitors (Respondent)
File Number(s):	125146