Tennent v Moukhlina

[2008] NSWADT 26

Set aside by Appeal:

CITATION:	Tennent and ors v Moukhlina and ors [2008] NSWADT 26
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Sacha Tennent Simon Conroy Alexander Djordjevic Red Star Pizza Pty Ltd RESPONDENTS Alexandra Moukhlina Alexandre Chevtchenko Serge Guinzbourg
FILE NUMBER:	075097
HEARING DATES:	27, 28 September 2007
SUBMISSIONS CLOSED:	16 October 2007
DATE OF DECISION:	16 January 2008
BEFORE:	Chesterman M - ADCJ (Deputy President); Griffiths G - (Advisory) Non Judicial Member ; Harrison B - (Advisory) Non Judicial Member
CATCHWORDS:	Claim for compensation - misleading or deceptive conduct - Claim for declaration of rights, obligations and liabilities under a lease - Claim for relief against forfeiture - Costs - Damages - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Interpretation Act 1987 Real Property Act 1900 Retail Leases Act 1994
CASES CITED:	Carberry v Gardiner (1936) 36 SR (NSW) 559 Carter v Schmitt [2003] NSWSC 1166 Churcher v Danes Hotels Pty Ltd (1980) 8 BPR 15863 Danziger v RJ Thompson [1944] 2 All ER 151 Hardinge v Schidor [2002] NSWCA 277 MacDonald v Robins (1954) 90 CLR 515 Parras v FAI General Insurance Co Ltd [2001] NSWSC 1077 Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 Smith v Wheatcroft (1878) 9 Ch D 223 Tsaoucis v Gallipoli Memorial Club Ltd [1998] NSWSC 229 Wallville Pty Ltd v Liristis Holding Pty Ltd [2001] NSWSC 894 Williams v Bulat [1992] 2 Qd R 566 Young v Lamb [2001] NSWCA 225
REPRESENTATION:	A Narayan, barrister G McGrath, barrister
ORDERS:	1. The application is dismissed 2. Any application for costs in these proceedings must be filed and served with supporting submissions within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted the matter will be resolved 'on the papers' pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 The principal question raised in this case was whether an option for the renewal of a registered lease of retail shop premises had been validly exercised by the sending of a letter. The specific issues raised by the parties included the following: whether at the time of the alleged exercise of the option the lessees were the two individuals named in the lease; whether the person who sent the letter had sufficient authority to exercise the option; whether the person to whom the letter was sent (who was the solicitor for the lessors in the granting of the lease) was an appropriate agent of the lessors to receive it; and whether, on the balance of probabilities, the letter reached the office of that person.

2 The lease in question (here after ‘the Lease’) was governed by the Retail Leases Act 1994 (here after the ‘RL Act’). The address of the property being leased (‘the Premises’) was 161/806 Bourke Street,…