Starwick Pty Ltd v Harrison

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Starwick Pty Ltd v Harrison [2011] NSWADT 58

Hearing dates:

3 March 2011

Decision date:

23 March 2011

Before:

K Rickards, Judicial Member

Decision:

1.Peter Harrison is to pay Starwick Pty Ltd the sum of $60,684.85 in respect of money owing to Starwick Pty Ltd

2.Peter Harrison is to pay the sum of $6,101.78 to Starwick Pty Ltd in respect of its costs of these proceedings.

Catchwords:

Jurisdiction; costs

Legislation Cited:

Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997

Cases Cited:

Prasad & Anor v Fairfield City Council (2000) NSWADT 164
Holden Tourism and Hospitality Pty Limited v Baldock (2001) NSWADT 123
Parallel Lines International Pty Limited v Video-Drama Pty Limited (2007) NSWADT 84
GPT Management Ltd and Anor v Spa Heaven Pty Ltd & Ors (2005) NSWSC 1043
Cripps and Another v G & M Dawson Pty Ltd and Another (2006) NSWCA 81

Category:

Principal judgment

Parties:

Starwick Pty Ltd

Representation:

P Brown (Applicant)
No appearance (Respondent)

File Number(s):

105206

reasons for decision

Background

1. On 17 September 2007 the Applicant ("Starwick") as lessor and the Respondent as lessee entered into a retail lease agreement in respect of premises known as unit 2, 4 Machinery Drive, South Tweed Heads. The term of the lease was for 3 years with a 3 year option.

1. The premises were predominantly used by the Respondent for the sale of health food items.

1. Pursuant to the terms of the lease, the Respondent was required to pay rent of $43,200 per annum, payable by monthly instalments of $3,600 plus GST for the first year of the term, together with CPI increases for the following years. The Respondent was also required by the terms of the lease to meet payment of other service outgoings including excess water and garbage charges.

1. At the time of entering into the lease, the parties also entered into a loan agreement whereby Starwick lent the sum of $20,000 to the Respondent to assist the Respondent to purchase fittings and equipment for the conduct of the business at the premises.

1. The loan was repayable by monthly payments of $1,666.66 in arrears and bore interest at 6% per annum, but the loan agreement provided that no interest would be payable if repayments were made on time. The Respondent has conceded that no repayments of this loan were ever made.

1. The Respondent first failed to pay rent which was due on 17 April 2009 in the sum of $4,144.44 inclusive of GST. The Respondent thereafter paid no further rent for the ensuing 12 months to March 2010. The Respondent also failed to pay service outgoings in respect of the premises for the period February 2008 to December 2010.

1. The term of the lease expired on 16 September 2010, but the Respondent stayed on in occupation of the premises until 2 December 2010 when he advised Starwick's Director Mr Phippard that he was immediately vacating the premises.

1. It soon emerged that the Respondent had, some days…