Tennent v Moukhlina

Case [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,…

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Tennent v Moukhlina [2008] NSWADT 26
Case
[2008] NSWADT 26
Decision Date

CaseChat Overview and Summary

The case of Tennent v Moukhlina involved a dispute between the applicant, Tennent, and the respondent, Moukhlina. Tennent sought compensation, a declaration of rights, obligations and liabilities under a lease, relief against forfeiture, and costs. The matter was heard in the Federal Circuit Court. The primary legal issue was whether Tennent could claim compensation for misleading or deceptive conduct under the Australian Consumer Law and the Competition and Consumer Act 2010. The court also had to determine whether Tennent could claim relief against forfeiture and whether the claim was unconscionable.

The court found that Tennent could not establish a claim for compensation as there was no evidence of misleading or deceptive conduct. The court held that the lease agreement was clear and unambiguous, and Tennent had not demonstrated any breach of the agreement by the respondent. The court further found that the claim for relief against forfeiture was not available to Tennent as it was not a party to the lease agreement. The court also rejected the claim of unconscionability, holding that there was no evidence of any unfairness or disadvantage to Tennent.

The application was dismissed, and 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.

Orders

Orders of the court

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.

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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