Putri Kenanga Pty Ltd v Pham - [2009] NSWADT 301

CITATION: Putri Kenanga Pty Ltd v Pham [2009] NSWADT 301

DIVISION: Retail Leases Division

PARTIES:
FIRST APPLICANT
Putri Kenanga Pty Ltd
SECOND APPLICANT
Andre Japardi
THIRD APPLICANT
Herlina Lie
FIRST RESPONDENT
Binh Van Pham
SECOND RESPONDENT
Truan Trinh Pham

FILE NUMBER: 085193

HEARING DATES: 13, 14 and 17 July 2009

SUBMISSIONS CLOSED: 9 September 2009

DATE OF DECISION:
4 December 2009

BEFORE: Chesterman M - Deputy President; Griffiths G - Non-Judicial Member ; Harrison B - Non-Judicial Member

CATCHWORDS: Retail lease – parties to lease – overpayment of bond – termination for non-payment of rent – unconscionable conduct – misleading or deceptive conduct

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Retail Leases Act 1994

CASES CITED: Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gumland v Duffy [2006] NSWSC 10
Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28
Owendale Pty Ltd v Anthony (1967) 117 CLR 539
Parris v Katsivardis [2002] NSWADT 150
Sarker v World Best Holdings Ltd (No 4) [2008] NSWADT 75
Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304
Tennent & Ors v Moukhlina & Ors (RLD) [2008] NSWADTAP 83
Vale v Rosychamp [2008] NSWSC 1373
Wallis Lake Fishermen’s Co-operative Ltd v A.C.N. 079 830 596 Pty Ltd [2008] NSWSC 925

REPRESENTATION:
APPLICANT
G Wilkinson, barrister
RESPONDENT
L Katsinas, barrister

ORDERS: 1. The First and Third Applicants are not entitled to relief in these proceedings
2. The Respondents are liable to pay to the Second Applicant the sum of $2,916.00, comprising a principal sum of $2,534.00 and interest amounting to $382.00
3. Any application for costs in these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 This case arose out of the termination of a retail shop lease (‘the Lease’) of premises at Epping (‘the Premises’) by the Respondent lessors, Binh Van Pham and Truan Trinh Pham, on the ground of non-payment of rent.

2 The lessee named in the Lease was the Second Applicant, Andre Japardi. The Third Applicant, Herlina Lie, is his wife. The First Applicant, Putri Kenanga Pty Ltd (‘Putri Kenanga’), is a company which Mr Japardi and Ms Lie incorporated in February 2005. At all material times, they have been its sole shareholders and directors. One of the questions raised at the hearing was whether Ms Lie and Putri Kenanga are proper parties to the proceedings.

3 The Applicants filed their Application to the Tribunal on 29 September 2008.…

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: [2009] NSWADT 301
Decision Date: 4 December 2009

CaseChat Overview and Summary

Putri Kenanga Pty Ltd, a company involved in retail, sought relief in proceedings against the Pham family, who were the tenants of a retail space. The dispute centred around an overpayment of bond, termination of the lease due to non-payment of rent, and allegations of unconscionable and misleading or deceptive conduct. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The applicants, Putri Kenanga Pty Ltd and two other parties, sought relief in relation to the overpayment of the bond and termination of the lease. They also claimed that the Phams had engaged in unconscionable and misleading or deceptive conduct.

The primary legal issues before the court were whether the termination of the lease was valid, the extent of the Phams' liability for the overpayment of the bond, and whether the Phams had engaged in any unconscionable or misleading or deceptive conduct. The applicants argued that the lease had been terminated unfairly, and that the Phams had overpaid the bond. They further contended that the Phams had engaged in conduct that was misleading or deceptive, and that such conduct was unconscionable. The Phams, on the other hand, argued that the termination of the lease was valid, and that they were not liable for the overpayment of the bond. They also denied engaging in any unconscionable or misleading or deceptive conduct.

The tribunal found that the termination of the lease was valid, and that the Phams were liable for the overpayment of the bond. The tribunal held that the Phams had not engaged in any unconscionable or misleading or deceptive conduct. The tribunal concluded that the applicants were not entitled to any relief in these proceedings. However, the tribunal ordered the Phams to pay the second applicant the sum of $2,916.00, comprising a principal sum of $2,534.00 and interest amounting to $382.00. The tribunal also made orders regarding the filing and service of applications for costs in these proceedings.

Orders

Orders of the court

1. The First and Third Applicants are not entitled to relief in these proceedings

2. The Respondents are liable to pay to the Second Applicant the sum of $2,916.00, comprising a principal sum of $2,534.00 and interest amounting to $382.00

3. Any application for costs in these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘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.

CITATION:	Putri Kenanga Pty Ltd v Pham [2009] NSWADT 301
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT Putri Kenanga Pty Ltd SECOND APPLICANT Andre Japardi THIRD APPLICANT Herlina Lie FIRST RESPONDENT Binh Van Pham SECOND RESPONDENT Truan Trinh Pham
FILE NUMBER:	085193
HEARING DATES:	13, 14 and 17 July 2009
SUBMISSIONS CLOSED:	9 September 2009
DATE OF DECISION:	4 December 2009
BEFORE:	Chesterman M - Deputy President; Griffiths G - Non-Judicial Member ; Harrison B - Non-Judicial Member
CATCHWORDS:	Retail lease – parties to lease – overpayment of bond – termination for non-payment of rent – unconscionable conduct – misleading or deceptive conduct
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Gumland v Duffy [2006] NSWSC 10 Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28 Owendale Pty Ltd v Anthony (1967) 117 CLR 539 Parris v Katsivardis [2002] NSWADT 150 Sarker v World Best Holdings Ltd (No 4) [2008] NSWADT 75 Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 Tennent & Ors v Moukhlina & Ors (RLD) [2008] NSWADTAP 83 Vale v Rosychamp [2008] NSWSC 1373 Wallis Lake Fishermen’s Co-operative Ltd v A.C.N. 079 830 596 Pty Ltd [2008] NSWSC 925
REPRESENTATION:	APPLICANT G Wilkinson, barrister RESPONDENT L Katsinas, barrister
ORDERS:	1. The First and Third Applicants are not entitled to relief in these proceedings 2. The Respondents are liable to pay to the Second Applicant the sum of $2,916.00, comprising a principal sum of $2,534.00 and interest amounting to $382.00 3. Any application for costs in these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.