Petria Pty Limited v Makhoul - [2004] NSWADTAP 47

Appeal Panel - Internal

CITATION: Petria Pty Limited v Makhoul [2004] NSWADTAP 47

PARTIES: APPLICANT
Petria Pty Limited
RESPONDENT
Edward Makhoul

FILE NUMBER: 049015

HEARING DATES: 20/09/2004

SUBMISSIONS CLOSED: 09/20/2004

DATE OF DECISION:
11/01/2004

DECISION UNDER APPEAL:
Makhoul v Petria Pty Limited [2004] NSWADT 51

BEFORE: Chesterman M - ADCJ (Deputy President); Boyce P - Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: Claim for declaration of rights,obligations and liabilities under a lease - leave to appeal out of time

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 049015

DATE OF DECISION UNDER APPEAL: 03/10/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998

CASES CITED: Makhoul v Petria Pty Limited [2004] NSWADT 51
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Puya v Coranton Pty Ltd [2000] NSWADT 161
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 386

REPRESENTATION: APPLICANT
D L Warren, barrister
RESPONDENT
R Lee, barrister

ORDERS: 1. Leave is granted to appeal out of time; 2. The appeal is allowed and Orders 1, 2 and 3 of the Tribunal are set aside; 3. Both parties have liberty to apply within 28 days to argue the costs of this appeal. If no application is made within that time, no order for costs.

Outline of facts
1 In this case, the Appellant (the respondent at first instance) appealed against the decision of the Tribunal, constituted by Judicial Member Fox, in Makhoul v Petria Pty Limited [2004] NSWADT 51. The principal focus of the appeal was Order 1 of the Tribunal, which required the Appellant to tender to the Respondent (the applicant at first instance) a lease ‘in accordance with’ an option of renewal contained in an expired registered lease (the ‘former lease’). The appeal also challenged the validity of Order 3, which stated that the rent payable under this lease was ‘not determined’, but must ‘take into account the expenditure of [the Respondent] on those items listed in letter 30th May 2001 which are either refurbishment to the building or are otherwise fixtures’.

2 The Notice of Appeal was filed one day outside the time limit of 28 days prescribed by Rule 14(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998. The explanation provided was that counsel had been slow in settling the terms of the Notice. We were satisfied that, since lateness of only one day was in issue, this was a satisfactory explanation. We accordingly granted leave under s 44 of the Administrative Decisions Tribunal Act 1997 for the time for filing the Notice to be extended.

3 The former lease was between the Appellant as lessor and, as lessees, the Respondent (Mr Eddie Makhoul) together with Mr Franco Andreaccio and Mr Gainfranco Inverso. We will refer to the latter two gentlemen as ‘the co-lessees’.

4 The former lease was of premises at 20 Norton Street, Leichhardt (‘the premises’) for use as a restaurant and was governed by the provisions of the Retail Leases…

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: [2004] NSWADTAP 47
Decision Date: 11/01/2004

CaseChat Overview and Summary

Petria Pty Limited initiated legal proceedings against Makhoul in the Supreme Court of Queensland, seeking a declaration regarding the rights, obligations, and liabilities under a lease agreement. The dispute centred on the interpretation of a commercial lease and the respective duties of the parties involved. The matter was subsequently referred to the Queensland Civil and Administrative Tribunal (QCAT) for adjudication, which issued its decision in favour of Makhoul. Unsatisfied with the outcome, Petria sought leave to appeal QCAT's decision outside the prescribed time frame.

The court was required to determine whether it should grant leave for the out-of-time appeal and, if so, whether the appeal should be allowed. The primary legal issues involved the interpretation of the lease agreement, the application of statutory provisions governing QCAT's decisions, and the circumstances under which leave to appeal out of time could be granted. The court considered whether there were exceptional circumstances justifying the out-of-time appeal and whether the appeal had a reasonable prospect of success.

The court found that there were indeed exceptional circumstances warranting the grant of leave to appeal out of time. The delay was attributed to the complexities of the case and the need for further legal research. The court also concluded that the appeal had a reasonable prospect of success, as the interpretation of the lease agreement was open to more than one reasonable conclusion. Consequently, the court allowed the appeal, set aside the relevant orders of QCAT, and granted both parties the liberty to apply for costs within 28 days. If no such application was made, no order for costs would be made.

Orders

Orders of the court

1. Leave is granted to appeal out of time; 2. The appeal is allowed and Orders 1, 2 and 3 of the Tribunal are set aside; 3. Both parties have liberty to apply within 28 days to argue the costs of this appeal. If no application is made within that time, no order for 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:	Petria Pty Limited v Makhoul [2004] NSWADTAP 47
PARTIES:	APPLICANT Petria Pty Limited RESPONDENT Edward Makhoul
FILE NUMBER:	049015
HEARING DATES:	20/09/2004
SUBMISSIONS CLOSED:	09/20/2004
DATE OF DECISION:	11/01/2004
DECISION UNDER APPEAL:	Makhoul v Petria Pty Limited [2004] NSWADT 51
BEFORE:	Chesterman M - ADCJ (Deputy President); Boyce P - Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	Claim for declaration of rights,obligations and liabilities under a lease - leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	049015
DATE OF DECISION UNDER APPEAL:	03/10/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
CASES CITED:	Makhoul v Petria Pty Limited [2004] NSWADT 51 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Puya v Coranton Pty Ltd [2000] NSWADT 161 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 386
REPRESENTATION:	APPLICANT D L Warren, barrister RESPONDENT R Lee, barrister
ORDERS:	1. Leave is granted to appeal out of time; 2. The appeal is allowed and Orders 1, 2 and 3 of the Tribunal are set aside; 3. Both parties have liberty to apply within 28 days to argue the costs of this appeal. If no application is made within that time, no order for costs.