Stefopoulos v Manikas (no.2)

[2004] NSWADT 127

CITATION:	Stefopoulos v Manikas (no.2) [2004] NSWADT 127
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Alex Stefopoulos RESPONDENT Dimitri & Georgina Manikas
FILE NUMBER:	035064
HEARING DATES:	10-11/03/2004, 17/06/2004
SUBMISSIONS CLOSED:	06/17/2004
DATE OF DECISION:	06/28/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 Byrnes v Jokona Pty Ltd [2002] FCA 41 (31 January 2002) Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Hawkesbury Nominees Pty Lid v Battik [2000] FCA 185 (1 March 2000) Martins Camera Corner v Hotel Mayfair Ltd [1976] 2 NSWLR 15 Nam & anor -v- Commonwealth Funds Management Limited & anor (No. 2) [2002] NSWADT 120 Prasad & Anor -v- Fairfield City Council [2001] NSWADT 28 Skiwing Pty Ltd v Trust Co of Australia Ltd (No 3) [2004] NSWADT 94
REPRESENTATION:	APPLICANT M Spry, barrister RESPONDENT J Pappas, barrister
ORDERS:	1.The Application is dismissed. ; 2. Each party is invited to file written submissions parties in relation to the issues of costs. Any submissions on behalf of the Respondents are to be filed and served within 14 days of the date of this decision. Any submissions on behalf of the Applicant are to be filed and served within a further 14 days of the date of the filing and service of the Respondents’ submissions.

REASONS FOR DECISION

1 This is an application brought by Mr. Alex Stefopoulos ("the Applicant") in relation to a retail shop lease ("the Lease") for premises located at 15 Monaro Street, Queanbeyan, ("the Premises"). The registered proprietors of the Premises are Mr. Dimitri Manikas and Ms. Georgina Manikas ("the Respondents"). The Premises were used for the business of a takeaway food shop known as Queanbeyan Takeaway (“the business”).

2 The Lease is governed by the Retail Leases Act 1994 (“the Act”). In his application to this Tribunal filed on 20 June 2003, the Applicant sought orders in the following terms:

1. An order declaring that clauses 6(4), 6(6), 6(9) or the lease otherwise required the lessee to pay monies in respect of the capital costs of the building, the lease is void for being inconsistent with section 23 of the Act;

2. An order declaring that the lessor is and was liable to undertake the works stipulated in Notice Relating to Breaches of the Food Act 1989 and Food Regulations 1997 (Notice Number 2000038) dated 20 June 2000 issued by the Queanbeyan City Council;

3. An order that the lessor pay the lessee reasonable compensation for the lessor's breach of section 34(l)(d) of the Act;

4. An order that the lessor pay to the lessee damages for the lessee's loss of its business.

3 Mr Spry, counsel for the Applicant, quantified the amount sought by the Applicant under proposed orders 3 and 4 at $132,503.

4 It is…