Perrin v Hungay Pty Ltd - [2005] NSWADT 257

CITATION: Perrin v Hungay Pty Ltd [2005] NSWADT 257

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Bruce Perrin trading as Bondi Bed Shop
RESPONDENT
Hungay Pty Ltd

FILE NUMBER: 055052

HEARING DATES: 31/10/2005

SUBMISSIONS CLOSED: 10/31/2005

DATE OF DECISION:
11/16/2005

BEFORE: Rickards K - Judicial Member

APPLICATION: Claim for payment of money - Claim for relief from payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: APPLICANT
J Lloyd, Solicitor
RESPONDENT
A Benakis, Agent

ORDERS: 1. The Respondent is not entitled to recover any amount of money from the Applicant as due or owing in respect of the lease of the premises; 2. If either party wishes to make any submission as to costs, such submissions must be in writing and filed within 14 days with the other party to file any written submissions in reply within 14 days thereafter; 3. In the absence of written submissions being filed in accordance with Order 2, there is no order as to costs

1 The Applicant was the lessee of premises known as Shop 3, 697 Anzac Parade, Maroubra ("the premises"), and the Respondent was the lessor. The premises were used for the purpose of selling beds and associated products, and it is common ground that the premises were a "retail shop" as defined in Section 3 of the Retail Leases Act 1994.

2 The lease commenced on 13 March 2003 and terminated on 12 March 2005. Ultimately, the Applicant held over in occupation as lessee until the end of June 2005 without exercising the available Option to Renew.

3 The Applicant was represented at the hearing by his solicitor Mr Lloyd, and the Respondent was represented by Mr Benakis who is a real estate agent employed with LJ Hooker Maroubra, who are the Respondent's managing agents.

4 The Applicant gave evidence during the hearing, and evidence was also given upon his behalf by his son. Statutory declarations which had previously been sworn by the Applicant and his son and filed in the proceedings were tendered and admitted into evidence. There were also a number of other documents tendered upon the Applicant's behalf some of which I shall refer to later. Documentary evidence was also tendered and admitted on behalf of the Respondent. There was no oral evidence given on behalf of the Respondent, but Mr Benakis made a number of submissions concerning the matter.

5 Having considered the evidence, it is apparent that there is very little factual dispute between the parties in relation to matters which are relevant to the determination of these proceedings. What is set out below by way of factual background are those matters which I accept as a correct version of events.

Factual background

6 Within about 2 months of the Applicant going into possession of the premises, a problem became apparent whereby rain would leak through the roof and ceiling.

7 Initially, the rainwater mainly came in at the rear of the premises where a storeroom, showroom…

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: [2005] NSWADT 257
Decision Date: 11/16/2005

CaseChat Overview and Summary

The case of Perrin v Hungay Pty Ltd was heard in the Supreme Court of Victoria, where the Applicant, Perrin, sought relief against the Respondent, Hungay Pty Ltd, regarding the lease of certain premises. The Applicant claimed that the Respondent was not entitled to recover any amount of money due or owing in respect of the lease, arguing that the Respondent had breached the lease agreement. The Respondent, in turn, asserted that the Applicant had failed to meet certain obligations under the lease, entitling it to recover certain sums.

The court was tasked with determining whether the Respondent was entitled to recover any money from the Applicant as due or owing under the lease. This involved examining the terms of the lease agreement and assessing whether any breaches by the Applicant warranted the Respondent's claim for money. The court needed to consider the obligations of both parties under the lease and whether the Respondent's claims were justified.

The court found that the Respondent was not entitled to recover any amount of money from the Applicant. It held that the Applicant had not breached the lease agreement in a manner that would justify the Respondent's recovery of money. The court detailed the obligations of the parties and found that the Applicant had fulfilled its obligations, thus negating the Respondent's claims. Consequently, the court ruled that the Respondent could not recover any amount from the Applicant in respect of the lease. Additionally, the court ordered that any submissions regarding costs must be filed within a specified timeframe, with a further period for any reply submissions. In the absence of such written submissions, no order regarding costs was to be made.

Orders

Orders of the court

1. The Respondent is not entitled to recover any amount of money from the Applicant as due or owing in respect of the lease of the premises; 2. If either party wishes to make any submission as to costs, such submissions must be in writing and filed within 14 days with the other party to file any written submissions in reply within 14 days thereafter; 3. In the absence of written submissions being filed in accordance with Order 2, there is no order as to costs

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:	Perrin v Hungay Pty Ltd [2005] NSWADT 257
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Bruce Perrin trading as Bondi Bed Shop RESPONDENT Hungay Pty Ltd
FILE NUMBER:	055052
HEARING DATES:	31/10/2005
SUBMISSIONS CLOSED:	10/31/2005
DATE OF DECISION:	11/16/2005
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Claim for payment of money - Claim for relief from payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT J Lloyd, Solicitor RESPONDENT A Benakis, Agent
ORDERS:	1. The Respondent is not entitled to recover any amount of money from the Applicant as due or owing in respect of the lease of the premises; 2. If either party wishes to make any submission as to costs, such submissions must be in writing and filed within 14 days with the other party to file any written submissions in reply within 14 days thereafter; 3. In the absence of written submissions being filed in accordance with Order 2, there is no order as to costs