Roach v Braun (RLD)

[2011] NSWADTAP 40

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Roach v Braun (RLD) [2011] NSWADTAP 40

Hearing dates:

11 July 2011

Decision date:

06 September 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Appeal Panel comprising
M Chesterman, Deputy President
P H Molony, Judicial Member
G Pinter, Non-judicial Member

Decision:

1. The appeal is allowed in part.

2. Order 3 of the Tribunal, made on 21 February 2011, is set aside and the following substituted:-

3) The Respondent is to pay to the Applicant the following:

a) outstanding rent of $14,400.00;

b) interest on the outstanding rent at 10% per annum;

c) survey fees of $825.00.

3. Order 4 of the Tribunal, made on 21 February 2011, is set aside and the following substituted:-

4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the total amount payable under order 3 and from the principal sum on which interest is payable under order 3(b)).

4. No order as to costs.

Catchwords:

Retail shop lease - whether binding even though not executed by both parties or registered - alleged misstatement in lessor's disclosure statement

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Braun v Roach [2011] NSWADT 31
Dong v West Services Pty Ltd [2010] NSW ADT 150
Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544
Masters v Cameron (1954) 91 CLR 353

Category:

Principal judgment

Parties:

Una Janeen Roach (Appellant)
Peter Braun (Respondent)

Representation:

Counsel
C Lawrence (Respondent)
In person (Appellant)

File Number(s):

119007

 Decision under appeal 

Citation:

Braun v Roach [2011] NSWADT 31

Date of Decision:

2011-02-21 00:00:00

Before:

Retail Leases Division

File Number(s):

095175

decision

Introduction

1. APPEAL PANEL (M CHESTERMAN (DEPUTY PRESIDENT), P H MOLONY (JUDICIAL MEMBER), G PINTER (NON-JUDICIAL MEMBER)): This is an appeal against a decision of the Retail Leases Division ( Braun v Roach [2011] NSWADT 31), in which the Appellant, Ms Una Roach, was ordered to pay to the Respondent, Mr Peter Braun, an amount of damages ($21,034.91, plus interest) on account of outstanding rent and certain other expenses.

1. The Tribunal's decision was delivered on 21 February 2011. Ms Roach filed a Notice of Appeal on 21 March 2011. At the hearing of the appeal on 11 July 2011, she represented herself and Mr Lawrence of counsel appeared on behalf of Mr Roach.

Outline of facts

1. The following outline of the facts that are relevant to this appeal is adapted from various paragraphs (principally paragraph [11]) of the Tribunal's decision.

1. By a registered memorandum of lease ('the Original Lease'), Ms Roach leased retail premises at 272 Bobbin Head Road, Turramurra ('the Premises') from Ms Mavis Irene Kirkwood. This lease was for a period of five years from 1 May 1998, with an option to renew for a further five years. The permitted use was 'Caf' and the lease was governed by the Retail Leases Act 1994 ('the RL Act'). At the time of entering it, Ms Roach paid a security deposit…