Rahman v Oprescu

[2011] NSWADT 124

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Rahman v Oprescu [2011] NSWADT 124
Hearing dates:	On the papers
Decision date:	27 May 2011
Jurisdiction:	Retail Leases Division
Before:	Judicial Member M Hole
Decision:	The Tribunal does not have jurisdiction
Catchwords:	Jurisdiction - claim for leasing costs
Legislation Cited:	Retail Leases Act 1994
Category:	Separate question
Parties:	M K Rahman and S H Rahman (applicants) Dumitru Octavian Oprescu (respondent)
Representation:	Both parties in person
File Number(s):	105193

REasons for decision

1. These parties were also the parties before the Tribunal in File No 105083 in respect of the same premises and the same lease.

1. A certificate pursuant to the Retail Leases Act 1994 ("the Act") indicating that mediation has failed was given on 3 February 2011 and filed on 17 February 2011.

1. The applicants claim that the respondent did not vacate the premises in accordance with the Orders given on 7 October 2010. That is that he did not vacate the shop on 15 October 2010, that he vacated the shop on 27 October 2010.

1. The applicants contend that as the respondent vacated 12 days later than the date ordered then certain damages flow from that date being:

(a) 2.5 months arrears of rent calculated from 15 September 2010 to 30 November 2010 = $5,105.00;

(b) 2 months arrears of council rates from 1 October 2010 to 30 November 2010 = $140.00;

(c) 2 months rent free period for new tenant to renovate 1 December 2010 to 31 January 2011 = $4,084.00;

(d) 2 months council rates 1 December 2010 to 31 January 2011 = $140.00;

(e) real estate fees and charges for leasing shop to new tenant = $2,246.20; and

(f) costs award as per detailed list = $227.00;

1. The applicants have offset the bond against the monies claimed resulting in a total claim of $10,052.20.

1. The respondent has provided a statement to the Tribunal disputing the claim of the applicants on the basis that he allegedly handed the keys to the applicants on 15 October 2010 at approximately 2.30pm. At that time the shop was empty. The respondent alleges that he had a conversation with one of the applicants, Mr Rahman, indicating that items were left at the shop for the benefit of the applicants and any new tenant. The respondent claims that he indicated to Mr Rahman that he would be prepared to receive $2,500.00 for those items and that Mr Rahman accepted that offer. The respondent also asked the applicants permission to return at a later date to collect a wheelbarrow from the garage, not from the premises being the 'shop'.

1. The respondent has requested that the matter be dismissed on the basis that it had been dealt with previously and that he vacated the premises in accordance with the Orders made in the Tribunal.

1. Both parties have requested that the matter be considered on the papers.

1. The situation is such that it is a claim by the applicants that the respondent did not vacate on the appropriate date and a claim by the respondent that he did vacate on that date. There is no other evidence provided. In the absence of supporting evidence the claim by the respondent is preferred.

1. The claim by the applicants refers to items that would not ordinarily be the subject of payment by the outgoing tenant being: the cost of leasing the premises, the costs of any rent free period provided to any new tenant and the cost of any rent for periods after the date when the tenant vacated the premises or when the tenant is alleged to have vacated the premises by the landlord. This last item is particularly so in view of the decision made on 7 October 2010.

1. The statement dated 7 March 2011 by the applicants provided to the Tribunal recites the Order made on 7 October 2010 that the respondent was to pay the applicants $13,257.90 and that the premises be vacated. There is no allegation in this claim that the respondent has not paid the amount ordered on 7 October 2010 to be paid.

1. The only item that the Tribunal has not dealt with by the Orders of 7 October 2010 is the further occupation of the premises between 15 October 2010 and 27 October 2010 if in fact the respondent had not vacated in accordance with the Order and/or non payment of rent between 9 September 2010 and 15 October 2010. There is no evidence of non payment of rent for this period. There is no rebuttal by the applicants of the allegations made by the respondent that items of his were accepted by Mr Rahman and that Mr Rahman accepted the offer on the basis of receipt by the respondent of $2,500.00 therefor.

1. The claim for further damages and arrears relates insofar as items (b) through (f), referred to in paragraph 4 above and part of item (a) between 15 October 2010 and 30 November 2010, are a reference to items that are due and payable by the applicants in the ordinary course of leasing the premises to a new tenant.

1. The claim by the applicants is in relation to items concerning the renting of the premises to a new tenant. The applicants have received the bond money of $2,000.00. There is no supporting evidence concerning the reason for the receipt of the bond.

1. In view of the Orders made on 7 October 2010 and of paragraphs 9, 11, 12, 13 and 14 this application seeks to re-agitate the matter and accordingly this Tribunal does not have jurisdiction.

Orders

1. The Tribunal does not have jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 27 May 2011