Solomon v Singh (No 2) - [2005] NSWADT 295

Pending Appeal:

CITATION: Solomon & Anor v Singh (No 2) [2005] NSWADT 295

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Isaac Solomon, Sara Cooper and Elizabeth Oxman
RESPONDENT
Dr Raghubir Singh

FILE NUMBER: 035094

HEARING DATES: 3/11/2005-4/11/2005, 8/11/2005

SUBMISSIONS CLOSED: 11/18/2005

DATE OF DECISION:
12/16/2005

BEFORE: Molloy GB - 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: British Westinghouse Electric and Manufacturing Co Ltd v. Underground Electric Railways Co of London Limited (1912) AC673
Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27
Solomon & Ors v Singh & Anor [2004] NSWADT 264

REPRESENTATION: APPLICANT
S Bell, Counsel
RESPONDENT
M Watts, Counsel

ORDERS: 1. The parties are directed to bring forward Short Minutes of Order in conformity with the terms of this decision. Those Short Minutes should specify the items allowed by this Tribunal in favour of the Applicant, set off the amount paid by Dr Sood and the quantum that should have been set off by way of mitigation in accordance with these reasons; 2. Matter listed for one-half hour at 2-00pm on Monday 30 January 2006 with a view to making appropriate orders pursuant to the said Short Minutes and directions (if required) as a consequence of the leave granted in Order 3; 3. Leave granted to either party to list the proceedings before me should the party so listing wish to agitate an argument relating to the Applicant’s legal fees contrary to the Tribunal’s expression of opinion set out in these reasons. Absent application to re-list on this issue made to the Tribunal at 2-00pm on 30 Janaury, 2006 the decision of this Tribunal will be a Declaration that the Applicant may not make claim against the Respondent for legal fees incurred in connection with the breach or non compliance by the lessee in relation to legal costs incurred in connection with the application to the Tribunal absent an application and order made pursuant to Section 88 Administrative Decisions Tribunal Act but otherwise the Applicant be entitled to recover against the Respondent their legal costs pursuant to Clause 27.2 of the lease subject to proper quantification

Background:

1 The Applicants are owners of premises known as Shop T12 (“the premises”) at the Eagle Vale Market Place shopping centre. The Respondent, Dr Singh, is a former director of Maxicare Medical Clinics Pty Limited (“Maxicare”) and S S Medical Pty Limited (“S S Medical”) who were the joint lessees of the premises from 4 May 1988 up to 31 July 2002. Dr Singh was one of the guarantors for the obligations of Maxicare and S S Medical under the lease. The other guarantor was Dr Suman Sood who was released from her guarantee obligations pursuant to a Deed of Release made on or about 9 June 2004. The effect of that Deed of Release has been considered by this Tribunal and was dealt with at first instance by Judicial Member S…

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.

Continue reading Solomon v Singh (No 2)

Details

AGLC: Solomon v Singh (No 2) [2005] NSWADT 295
Case: [2005] NSWADT 295
Decision Date: 12/16/2005

CaseChat Overview and Summary

The case of Solomon v Singh (No 2) was heard by the Administrative Appeals Tribunal of Australia. The dispute involved the Applicant, Solomon, and the Respondent, Singh, over a breach or non-compliance by the lessee in relation to legal costs incurred in connection with an application to the Tribunal. The Applicant sought to recover legal fees from the Respondent, which the Respondent contested. The matter was decided by the Tribunal, which had to determine the legal issues regarding the recovery of legal fees and costs.

The legal issues before the Tribunal were whether the Applicant could recover legal fees from the Respondent in connection with the breach or non-compliance by the lessee. The Tribunal also had to determine whether the Applicant was entitled to recover their legal costs pursuant to Clause 27.2 of the lease. The Tribunal considered the relevant legislation, administrative decisions, and contractual obligations to make its decision.

The Tribunal found that the Applicant could not make a claim against the Respondent for legal fees incurred in connection with the breach or non-compliance by the lessee. However, the Tribunal ruled that the Applicant was entitled to recover their legal costs pursuant to Clause 27.2 of the lease. The Tribunal directed the parties to bring forward Short Minutes of Order in conformity with its decision and set a date for further proceedings to make appropriate orders. The Tribunal also granted leave to either party to list the proceedings before it should they wish to agitate an argument relating to the Applicant’s legal fees.

The Tribunal made a Declaration that the Applicant may not make claim against the Respondent for legal fees incurred in connection with the breach or non-compliance by the lessee in relation to legal costs incurred in connection with the application to the Tribunal absent an application and order made pursuant to Section 88 Administrative Decisions Tribunal Act. However, the Applicant was entitled to recover their legal costs pursuant to Clause 27.2 of the lease subject to proper quantification. The Tribunal's decision provided clarity on the legal issues and directed the parties to bring forward Short Minutes of Order and set a date for further proceedings.

Orders

Orders of the court

1. The parties are directed to bring forward Short Minutes of Order in conformity with the terms of this decision. Those Short Minutes should specify the items allowed by this Tribunal in favour of the Applicant, set off the amount paid by Dr Sood and the quantum that should have been set off by way of mitigation in accordance with these reasons; 2. Matter listed for one-half hour at 2-00pm on Monday 30 January 2006 with a view to making appropriate orders pursuant to the said Short Minutes and directions (if required) as a consequence of the leave granted in Order 3; 3. Leave granted to either party to list the proceedings before me should the party so listing wish to agitate an argument relating to the Applicant’s legal fees contrary to the Tribunal’s expression of opinion set out in these reasons. Absent application to re-list on this issue made to the Tribunal at 2-00pm on 30 Janaury, 2006 the decision of this Tribunal will be a Declaration that the Applicant may not make claim against the Respondent for legal fees incurred in connection with the breach or non compliance by the lessee in relation to legal costs incurred in connection with the application to the Tribunal absent an application and order made pursuant to Section 88 Administrative Decisions Tribunal Act but otherwise the Applicant be entitled to recover against the Respondent their legal costs pursuant to Clause 27.2 of the lease subject to proper quantification

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Solomon & Anor v Singh (No 2) [2005] NSWADT 295
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Isaac Solomon, Sara Cooper and Elizabeth Oxman RESPONDENT Dr Raghubir Singh
FILE NUMBER:	035094
HEARING DATES:	3/11/2005-4/11/2005, 8/11/2005
SUBMISSIONS CLOSED:	11/18/2005
DATE OF DECISION:	12/16/2005
BEFORE:	Molloy GB - 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:	British Westinghouse Electric and Manufacturing Co Ltd v. Underground Electric Railways Co of London Limited (1912) AC673 Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27 Solomon & Ors v Singh & Anor [2004] NSWADT 264
REPRESENTATION:	APPLICANT S Bell, Counsel RESPONDENT M Watts, Counsel
ORDERS:	1. The parties are directed to bring forward Short Minutes of Order in conformity with the terms of this decision. Those Short Minutes should specify the items allowed by this Tribunal in favour of the Applicant, set off the amount paid by Dr Sood and the quantum that should have been set off by way of mitigation in accordance with these reasons; 2. Matter listed for one-half hour at 2-00pm on Monday 30 January 2006 with a view to making appropriate orders pursuant to the said Short Minutes and directions (if required) as a consequence of the leave granted in Order 3; 3. Leave granted to either party to list the proceedings before me should the party so listing wish to agitate an argument relating to the Applicant’s legal fees contrary to the Tribunal’s expression of opinion set out in these reasons. Absent application to re-list on this issue made to the Tribunal at 2-00pm on 30 Janaury, 2006 the decision of this Tribunal will be a Declaration that the Applicant may not make claim against the Respondent for legal fees incurred in connection with the breach or non compliance by the lessee in relation to legal costs incurred in connection with the application to the Tribunal absent an application and order made pursuant to Section 88 Administrative Decisions Tribunal Act but otherwise the Applicant be entitled to recover against the Respondent their legal costs pursuant to Clause 27.2 of the lease subject to proper quantification