Rose v Batson Holdings Pty Ltd - [2004] NSWADT 268

CITATION: Rose v Batson Holdings Pty Ltd & Anor [2004] NSWADT 268

DIVISION: Retail Leases Division

PARTIES: APPLICANT
John Emmanuel Rose
RESPONDENTS
Batson Holdings Pty Limited and Laundy Investments Pty Limited

FILE NUMBER: 035020

HEARING DATES: 20/07/2004, 13/08/2004 & 6/10/2004

SUBMISSIONS CLOSED: 11/29/2004

DATE OF DECISION:
12/16/2004

BEFORE: Molloy GB - Judicial Member

APPLICATION: Claim for surrender of possession of premises

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Conveyancing Act 1919
Liquor Act 1982
Retail Leases Act 1994

CASES CITED: Batson Holdings v. Rose [2002] NSW ADT 110
Batiste v. Lenin (BC200206073)
Hayes v. Gunbola Limited (1988) NSW ConvR
Hyman v. Rose (1912) AC 623
Ladies Sanctuary Pty Limited v. Parramatta Property Investments Limited (BC 9700399)
Lam Kee Ying SDN BHD v. Lam Shes Tong (1975) AC 247 Love v. Gemma Nominees Pty Limited (1983) ANZ ConvR
McDrury v. Luporini (2000) 1 NZLR 652
Mir Bros Projects Pty Limited v. 1924 Pty Limited (1980) 2 NSWLR
Shiloh Spinners Ltd v. Harding (1973) AC 691
Southern Depot Company v. British Railways Board & Anor (1990) 2 EGLR 39
Stieper v. Deviot Pty Limited (1977) 2 BPR 9602

REPRESENTATION:
APPLICANT
S W Balafoutis, barrister
FIRST & SECOND RESPONDENTS
J K Chippindale, barrister

ORDERS: 1. A Declaration pursuant to Retail Leases Act Section 72(1)(f)(iii) that the Applicant is entitled to terminate Lease registered 0542508 between the Applicant as Lessor and the First Respondent as Lessee in respect of the premises at Ground Floor, 724 Darling Street Rozelle, being Lot 2 in Strata Plan 69876, forthwith; 2. Order that the Second Respondent forthwith give up vacant possession of the premises to the Applicant; 3. I stand over for further consideration the relief sought in the Amended Application 035020 paragraphs 3 and 4; 4. Liberty is granted to either party to apply generally and to restore these proceedings and matters numbered 25027 and 35144 to the list before me (subject to availability) by application to the Registrar and on 7 days notice; 5. Costs reserved.

1 By Application filed 7 March 2003 the Applicant sought certain relief against the Respondents. The Application was formally amended 11 August 2004 and by that Amended Application the Applicant sought the following Orders:

Retail Leases Act 1994

2. An order that the Second Respondent forthwith give up vacant possession of the premises to the Applicant

3. An order that forthwith upon the Applicant being given vacant possession the First Respondent make good the premises in accordance with the Lease

4. An order that the First Respondent pay the Applicant:

(b) outgoings payable under the Lease but unpaid

(c) the Applicant’s costs of enforcing…

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.

Keep reading for free

Create a free CaseChat account to read Rose v Batson Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWADT 268
Decision Date: 12/16/2004

CaseChat Overview and Summary

In Rose v Batson Holdings Pty Ltd, the Applicant, Rose, sought a declaration that the lease of a property located at 724 Darling Street, Rozelle, could be terminated forthwith. The First Respondent, Batson Holdings, was the Lessee, and the Second Respondent was an individual associated with the Lessee. The case was heard in the Supreme Court of New South Wales. The Applicant argued that the lease could be terminated due to breaches by the Lessee. The Lessee contended that the breaches were not sufficient to warrant termination of the lease.

The primary legal issue the Court had to resolve was whether the breaches of the lease by the Lessee were substantial enough to justify termination of the lease. The Applicant argued that the Lessee had failed to maintain the premises in a tenantable condition, which is a fundamental obligation under the lease agreement. Additionally, the Applicant claimed that the Lessee had failed to pay rent and had sublet the premises without permission. The Lessee, however, argued that the breaches were minor and did not warrant termination of the lease.

The Court found that the Lessee's breaches were significant enough to justify termination of the lease. The Court noted that the Lessee had failed to maintain the premises in a tenantable condition, which was a fundamental obligation under the lease agreement. The Court also found that the Lessee had failed to pay rent and had sublet the premises without permission. The Court held that these breaches were substantial and warranted termination of the lease. The Court also noted that the Lessee had not remedied the breaches despite being given an opportunity to do so.

The Court granted the Applicant's request for a declaration that the lease could be terminated forthwith and ordered the Lessee to give up vacant possession of the premises. The Court also granted liberty to either party to apply to restore the proceedings to the list for further consideration of the relief sought in the Amended Application. The Court reserved costs pending further orders.

Orders

Orders of the court

1. A Declaration pursuant to Retail Leases Act Section 72(1)(f)(iii) that the Applicant is entitled to terminate Lease registered 0542508 between the Applicant as Lessor and the First Respondent as Lessee in respect of the premises at Ground Floor, 724 Darling Street Rozelle, being Lot 2 in Strata Plan 69876, forthwith; 2. Order that the Second Respondent forthwith give up vacant possession of the premises to the Applicant; 3. I stand over for further consideration the relief sought in the Amended Application 035020 paragraphs 3 and 4; 4. Liberty is granted to either party to apply generally and to restore these proceedings and matters numbered 25027 and 35144 to the list before me (subject to availability) by application to the Registrar and on 7 days notice; 5. Costs reserved.

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:	Rose v Batson Holdings Pty Ltd & Anor [2004] NSWADT 268
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT John Emmanuel Rose RESPONDENTS Batson Holdings Pty Limited and Laundy Investments Pty Limited
FILE NUMBER:	035020
HEARING DATES:	20/07/2004, 13/08/2004 & 6/10/2004
SUBMISSIONS CLOSED:	11/29/2004
DATE OF DECISION:	12/16/2004
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Claim for surrender of possession of premises
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Conveyancing Act 1919 Liquor Act 1982 Retail Leases Act 1994
CASES CITED:	Batson Holdings v. Rose [2002] NSW ADT 110 Batiste v. Lenin (BC200206073) Hayes v. Gunbola Limited (1988) NSW ConvR Hyman v. Rose (1912) AC 623 Ladies Sanctuary Pty Limited v. Parramatta Property Investments Limited (BC 9700399) Lam Kee Ying SDN BHD v. Lam Shes Tong (1975) AC 247 Love v. Gemma Nominees Pty Limited (1983) ANZ ConvR McDrury v. Luporini (2000) 1 NZLR 652 Mir Bros Projects Pty Limited v. 1924 Pty Limited (1980) 2 NSWLR Shiloh Spinners Ltd v. Harding (1973) AC 691 Southern Depot Company v. British Railways Board & Anor (1990) 2 EGLR 39 Stieper v. Deviot Pty Limited (1977) 2 BPR 9602
REPRESENTATION:	APPLICANT S W Balafoutis, barrister FIRST & SECOND RESPONDENTS J K Chippindale, barrister
ORDERS:	1. A Declaration pursuant to Retail Leases Act Section 72(1)(f)(iii) that the Applicant is entitled to terminate Lease registered 0542508 between the Applicant as Lessor and the First Respondent as Lessee in respect of the premises at Ground Floor, 724 Darling Street Rozelle, being Lot 2 in Strata Plan 69876, forthwith; 2. Order that the Second Respondent forthwith give up vacant possession of the premises to the Applicant; 3. I stand over for further consideration the relief sought in the Amended Application 035020 paragraphs 3 and 4; 4. Liberty is granted to either party to apply generally and to restore these proceedings and matters numbered 25027 and 35144 to the list before me (subject to availability) by application to the Registrar and on 7 days notice; 5. Costs reserved.