Rose Holdings Pty Ltd v Chusap

CITATION:	Rose Holdings Pty Limited -v- Chusap [2002] NSWADT 153 revised - 03/12/2002
DIVISION:	Retail Leases Division
PARTIES:	1. APPLICANT Rose Holdings Pty Limited 1. RESPONDENT Somdet Chusap 2. APPLICANT Somdet Chusap 2.RESPONDENT Rose Holdings Pty Limited
FILE NUMBER:	025012; 025023
HEARING DATES:	14/05/02, 12/06/02
SUBMISSIONS CLOSED:	06/12/2002
DATE OF DECISION:	08/28/2002
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	1. APPLICANT B Miller, solicitor 2. APPLICANT J Kosmin, solicitor 1. RESPONDENT J Kosmin, solicitor 2.. RESPONDENT B Miller, solicitor
ORDERS:	025012; 1. Respondent to pay applicant $13,548.72 plus interest $790.66, making a total of $14,339.38. Note that Applicant has appropriated bond of $5,543.50 in part payment, leaving balance payable by Applicant to Respondent of $8,795.88; 2. No order for costs; 025023; 1. Application dismissed; 2. No order for costs

1 In these proceedings (025012) the Lessor Rose Holdings sued for the cost of the refurbishment (and rent lost during the period of refurbishment), of restaurant premises at 462 Oxford Street, Paddington after they were vacated by the Lessee at the end of an occupancy of some years. The Lessee, in matter number 025023 sought Orders relieving him from any liability.

2 The matter involved 2 days of hearing during which statements and oral evidence were given by the managing agent, Greg Cromie; the Lessee, Somdet Chusap; the Lessee’s Wife Waewpradit Chusap; and the managing director of the Lessor company, Mr Rose.

3 To put the matter in context, it is clear that, because the original lease commenced in 1992, and the present Lease arises out of the exercise of an option contained in that lease, section 6(1) (d) applied, and the Retail Leases Act does not operate to imply terms and conditions of the letting in place of those contained in the lease document. Of course, the matter is before me as a Retail Tenancy Dispute pursuant to section 63 of the Act which gives me jurisdiction despite the operation of section 6.

4 It is fair to observe that the evidence before me, and argument, turned on two issues, one of which being the date of assignment and the state of the premises at that time, and the other being the obligations under the Lease and the state of repair of the premises at the time of surrender. The Lessee took an assignment some time in 1995, resulting in his being entitled to exercise an option in 1996 in turn resulting in the Lease in issue before me, commencing on 15 December 1996, and ending on the 14 December 2000. The actual date of assignment is only marginally relevant.

5 The affidavit of Mr Cromie and his oral evidence established that there was a meeting between he and the Lessee on 31 October 2000 in which the general state of cleanliness of the premises was discussed in the context of the issue of a new…