Restuccia v Entasil Pty Ltd

CITATION:	Restuccia & Ors v Entasil Pty Ltd [2008] NSWADT 248
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Elena Restuccia, Michelle Totaro and John Totaro RESPONDENT Entasil Pty Limited
FILE NUMBER:	075080
HEARING DATES:	24 and 25 July 2008
SUBMISSIONS CLOSED:	25 July 2008
DATE OF DECISION:	2 September 2008
BEFORE:	Chesterman M - Deputy President; Harrison B - Non-Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Damages - Misleading or deceptive conduct - Unconscionability - Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Awad v Bucasia Pty Ltd [2003] NSWADT 247 Frank v Brown [2000] NSWSC 290 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 Legione v Hateley (1983) 152 CLR 406 Markson v Cutler [2007] NSWSC 1515 Mineaplenty Pty Ltd v Trek 31 Pty Ltd [2006] NSWSC 1203 Riltang Pty Ltd v L Pty Ltd [2002] NSWSC 625 Setena Pty Ltd v Perpetual Trustee Nominees (Canberra) Ltd (1987) NSW Conv R 55-322 Universal Roofing and Accessories Pty Ltd v Singh [2004] NSWADT 32 Young v Lamb [2001] NSWCA 225
REPRESENTATION:	APPLICANT B Zipser, barrister RESPONDENT J Armfield, barrister
ORDERS:	1. The application is dismissed 2. 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 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

Introduction

1 In this case, the principal issues arising were the following: (a) whether the evidence established that one of three lessees under a retail shop lease which contained an option of renewal by written notice communicated the lessees’ desire to exercise the option of renewal in the course of a telephone conversation with the managing agent of the lessor; (b) whether the agent indicated to the lessee that she had thereby done enough to exercise the option; and (c) if so, whether the agent had authority to bind the lessor in so doing, with the consequence that the lessor should be taken to have waived the requirement of written notice and/or to be estopped from denying that the option had been validly exercised.

2 In their application to the Tribunal, the lessees sought declarations and accompanying orders confirming their entitlement to a lease as specified in the option to renew or, in the alternative, for damages for unconscionable conduct and/or misleading or deceptive conduct on the part of the agent.

3 Because the Notice of Application included an unconscionable conduct claim, the Tribunal has been constituted in these proceedings in accordance with Clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). It has…