Protogeros v Fouzas

CITATION:	Protogeros -v- Fouzas [2004] NSWADT 62
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT John Protogeros RESPONDENTS Bill Fouzas Sylvia Fouzas
FILE NUMBER:	035109
HEARING DATES:	01/03/2004
SUBMISSIONS CLOSED:	03/15/2004
DATE OF DECISION:	03/31/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Aspromonte Pty. Limited v Zagari (1999) NSWSC 831 Randi Wixs Pty Limited -v- Pokana Pty Limited (No. 2) [2003] NSWADT 4 Matheson v Matheson [1952] VLR 27 Watson v Watson [1968] 2 NSWR 647 Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27
REPRESENTATION:	APPLICANTS J Trebeck, barrister RESPONDENT P James, solicitor
ORDERS:	1. The Lessees' application for a stay of these proceedings is refused; 2. The Lessees are liable to pay the Lessor the full amount of the rent arrears. The parties are I invited to provide further material to clarify the amount of the rent arrears. This material is to be filed within 14 days of the date when this decision is published; 3. The Lessees are to pay the Lessor's costs in relation to the aborted hearing on 19 December 2003, and the directions hearing on 2 December 2003.

REASONS FOR DECISION

1 This is an application brought by Mr John Protogeros ("the Lessor") in relation to a retail shop lease ("the Lease") for premises located at 69 Kendall Street, Cowra ("the Premises"). Mr Protogeros is the registered proprietor of the Premises. Mr Bill Fouzas and Ms Sylvia Fouzas ("the Lessees") are the lessees of the Premises. At the Premises, the Lessees operated a shop known as the Golden Key Café ("the Café"). It is common ground that the Lease is governed by the Retail Leases Act 1994 (“the Act”).

Background

2 Some time prior to August 1997 the Lessees entered into a partnership agreement with Zizis Papaioannou and Irene Papaioannou (“the Papaioannous”) for the purpose of the operation of the Café. On 11 August 1997 the purchase of the Café business was settled. By letter dated 11 August 1997 the Lessees’ solicitor, Mr Jim Kartsounis of Kartsounis & Co Solicitors, wrote to the Lessor’s solicitors, Garden & Montgomerie Solicitors, and requested the inclusion of the Papaioannous as lessees. That consent was given by letter also dated 11 August 1997. On 13 August 1997 the Lessees and the Papaioannous took possession of the Premises and commenced renovations.

3 An undated document headed “Lease - Real Property Act 1900” in the standard Law Society “07L Lease” format ("the Lease document") was signed by each of the Lessees on 11 August 1997. The Papaioannous also signed the Lease document. Stamp duty was paid on the Lease document on 19 August 1997. The Lessor has not signed the copy of the Lease document before the Tribunal and there is doubt about whether he ever signed a copy of the Lease document. The Lease document has not been registered.

4 The Lease document expressed the…