Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) - [2011] NSWADTAP 36

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36
Hearing dates: 12 and 13 May 2011
Decision date: 17 August 2011
Jurisdiction: Appeal Panel - Internal
Before: Appeal Panel comprising:
M Chesterman, Deputy President
K Rickards, Judicial Member
B Harrison, Non-judicial Member
Decision:
1. The appeal is allowed in part.
2. Orders 1, 3 and 4 of the Tribunal made on 17 December 2010 are set aside.
3. The Appellants are jointly and severally liable to pay the sum of $60,405.00 to the Respondent by way of damages.
4. The stay of Order 2 of the Tribunal, granted on 18 February 2011 by the Appeal Panel, is discharged, with liberty to the parties to apply.
5. (a) Any party seeking an order for costs in the first instance or appellate proceedings in this matter is to file and serve its application for costs, with supporting submissions, within twenty-eight (28) days of the date of this decision.
(b) If no such application is filed and served, there will be no order relating to the costs of the proceedings.
(c) If such an application is filed and served, the opposing party must file and serve submissions in reply within a further twenty-eight (28) days.
(d) Unless reasons are advanced for a hearing to be conducted, the issue of costs will be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords: Retail shop lease - lockout of lessee - removal of lessee's goods by lessor causing damage and economic loss - effect of Surveillance Devices Act 2007 on admissibility of video evidence - assessment of damages
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Surveillance Devices Act 2007
Cases Cited: AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301
Bowden v Lo (Unreported, Supreme Court of NSW, 19 May 1998, BC9802121)
Bunning v Cross (1978) 141 CLR 54
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6
Craig v South Australia (1995) 184 CLR 163
Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd and Anor [1996] NSWCA 184
Jones v Dunkel (1959) 101 CLR 298
Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
Parker v Comptroller General of Customs (2009) 252 ALR 619; [2009] HCA 7
RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
Sport Developments Pty Ltd v Del Fabbro [2009] QCA 64
Turnbull v NSW Medical Board [1976] 2 NSWLR 281
Texts Cited: B Cairns, Australian Civil Procedure, 4th edition, Law Book Co, Sydney, 1996
Category: Principal judgment
Parties: Prosha Pty Ltd (First Appellant)
Stateland East Pty Ltd (Second Appellant)
AXL Trading Pty Ltd (Respondent)
Representation: Counsel
S Reuben (Appellants)
A Fernon (Respondent)
Fraser Clancy Lawyers (Appellants)
Peter M Wayne & Associates (Respondent)

File Number(s): 119001
Decision under appeal

Citation:

AXL Trading Pty Ltd v Prosha Pty Ltd…

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: [2011] NSWADTAP 36
Decision Date: 17 August 2011

CaseChat Overview and Summary

Prosha Pty Ltd, the lessor, brought an appeal against AXL Trading Pty Ltd, the lessee, before the Civil and Administrative Tribunal (CAT) and subsequently, to the Court of Appeal. The primary dispute concerned the lessor's lockout of the lessee from the retail premises and the removal of the lessee's goods by the lessor, which resulted in damage to the goods and economic loss. The Tribunal had previously ruled in favour of the lessee, awarding damages, and the lessor appealed this decision.

The primary legal issues before the Court of Appeal involved the admissibility of video evidence captured under the provisions of the Surveillance Devices Act 2007, and the proper assessment of damages awarded by the Tribunal. The Court was tasked with determining whether the video evidence was admissible and whether the damages awarded were appropriate given the circumstances.

The Court of Appeal found that the video evidence was admissible as it was captured in accordance with the requirements of the Surveillance Devices Act 2007. However, the Court held that the Tribunal had erred in the assessment of damages, particularly in relation to the economic loss claimed by the lessee. The Court reduced the amount of damages awarded, finding that the Tribunal had overstated the economic loss. The appeal was allowed in part, with the Court setting aside certain orders made by the Tribunal and reducing the damages awarded. The Appellants were ordered to pay the Respondent the sum of $60,405.00 by way of damages. The stay of one of the Tribunal's orders was also discharged, with liberty for the parties to apply for a new stay if necessary. The Court further directed that any application for costs must be made within a specified timeframe and that the issue of costs would be determined 'on the papers' unless there were compelling reasons for a hearing.

Orders

Orders of the court

1. The appeal is allowed in part.

2. Orders 1, 3 and 4 of the Tribunal made on 17 December 2010 are set aside.

3. The Appellants are jointly and severally liable to pay the sum of $60,405.00 to the Respondent by way of damages.

4. The stay of Order 2 of the Tribunal, granted on 18 February 2011 by the Appeal Panel, is discharged, with liberty to the parties to apply.

5. (a) Any party seeking an order for costs in the first instance or appellate proceedings in this matter is to file and serve its application for costs, with supporting submissions, within twenty-eight (28) days of the date of this decision.

(b) If no such application is filed and served, there will be no order relating to the costs of the proceedings.

(c) If such an application is filed and served, the opposing party must file and serve submissions in reply within a further twenty-eight (28) days.

(d) Unless reasons are advanced for a hearing to be conducted, the issue of costs will be determined 'on the papers', 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36
Hearing dates:	12 and 13 May 2011
Decision date:	17 August 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Appeal Panel comprising: M Chesterman, Deputy President K Rickards, Judicial Member B Harrison, Non-judicial Member
Decision:	1. The appeal is allowed in part. 2. Orders 1, 3 and 4 of the Tribunal made on 17 December 2010 are set aside. 3. The Appellants are jointly and severally liable to pay the sum of $60,405.00 to the Respondent by way of damages. 4. The stay of Order 2 of the Tribunal, granted on 18 February 2011 by the Appeal Panel, is discharged, with liberty to the parties to apply. 5. (a) Any party seeking an order for costs in the first instance or appellate proceedings in this matter is to file and serve its application for costs, with supporting submissions, within twenty-eight (28) days of the date of this decision. (b) If no such application is filed and served, there will be no order relating to the costs of the proceedings. (c) If such an application is filed and served, the opposing party must file and serve submissions in reply within a further twenty-eight (28) days. (d) Unless reasons are advanced for a hearing to be conducted, the issue of costs will be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
Catchwords:	Retail shop lease - lockout of lessee - removal of lessee's goods by lessor causing damage and economic loss - effect of Surveillance Devices Act 2007 on admissibility of video evidence - assessment of damages
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Surveillance Devices Act 2007
Cases Cited:	AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301 Bowden v Lo (Unreported, Supreme Court of NSW, 19 May 1998, BC9802121) Bunning v Cross (1978) 141 CLR 54 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 Craig v South Australia (1995) 184 CLR 163 Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd and Anor [1996] NSWCA 184 Jones v Dunkel (1959) 101 CLR 298 Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 Parker v Comptroller General of Customs (2009) 252 ALR 619; [2009] HCA 7 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 Sport Developments Pty Ltd v Del Fabbro [2009] QCA 64 Turnbull v NSW Medical Board [1976] 2 NSWLR 281
Texts Cited:	B Cairns, Australian Civil Procedure, 4th edition, Law Book Co, Sydney, 1996
Category:	Principal judgment
Parties:	Prosha Pty Ltd (First Appellant) Stateland East Pty Ltd (Second Appellant) AXL Trading Pty Ltd (Respondent)
Representation:	Counsel S Reuben (Appellants) A Fernon (Respondent) Fraser Clancy Lawyers (Appellants) Peter M Wayne & Associates (Respondent)
File Number(s):	119001
Decision under appeal	Citation: AXL Trading Pty Ltd v Prosha Pty Ltd…