Thai Star Video Pty Limited v Walpole - [2007] NSWADT 193

CITATION: Thai Star Video Pty Limited v Walpole [2007] NSWADT 193

DIVISION: Retail Leases Division

PARTIES: FIRST APPLICANT
Thai Star Video Pty Limited
FIRST RESPONDENTS
Thaensa Walpole & Ari Walpole
SECOND APPLICANT
Ari Walpole
SECOND RESPONDENT
Thai Star Video Pty Limited

FILE NUMBER: 065156, 065184

HEARING DATES: 16 March 2007, 28 March 2007

SUBMISSIONS CLOSED: 28 March 2007

DATE OF DECISION:
27 August 2007

BEFORE: Fox R - Judicial Member

CATCHWORDS: Claim for declaration of rights, obligations and liabilities under a lease

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Conveyancing Act 1919
Real Property Act 1900
Retail Leases Act 1994

CASES CITED: Aspromonte Pty Limited v Zagari [1999] NSWSC
Duncan’s Catering Pty Limited v Bankstown City Council [2005] NSW ADT 158
Four Seasons International Agricultural Pty Limited v Iacullo [2002] NSW ADT 91
Freetell Communications Pty Limited v In Eop Chung [2003] NSW ADT 169
Jarre Pty Limited v Vumbaca [1998] NSW Conv R 55-832 at 56,515-56,520
Protogeros v Fouzas [2004] NSW ADT 62
Randi Wixs Pty Limited v Pokana Pty Limited (No.2) [2003] NSW ADT 4
Rolet v Baron [2002] NSW ADT 316
Tribunal in Perhauz v SAF Properties Pty Limited [2007] NSW ADT 122
Whiteway House (No. 100) Pty Ltd v Abrocoona Pty Limited [1998] NSW SC 52

REPRESENTATION:
FIRST APPLICANT & SECOND RESPONDENT
R Bellamy, barrister
FIRST RESPONDENT & SECOND APPLICANT
In person

ORDERS: 1. Pursuant to s72(f)(iii) I declare that there exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor a retail shop lease for a term to end of 15 July 2013, but which must come to an end of 15 July 2009 if Ari Walpole does not exercise his four year option for the head lease. However, if Ari Walpole remains in possession of the premises as tenant holding over under the lease now registered on title, or under the lease which results from exercise of the option, then the sublease continues until the end of the holding over under the head lease. ; 2. Any application for costs to be made within 21 days. If an application is made, the applicant for costs is to file and serve submissions within 14 days and the respondent to that application is to file and serve submissions in reply within a further 14 days. Application to be determined on the papers. Otherwise no order for costs.

1 The facts in this matter are relatively simple, the legal result is far from that.

2 Ari Walpole is the Lessee of premises at 16 Campbell Street, Sydney [Haymarket], from which he conducts a greengrocery business. Thai Star Video is a company owned and conducted by Wirul Eungpongpan and his wife Mary. Since October 2003 it has conducted a video hire business from an eight or nine square metre area at the front of Ari Walpole’s shop. The area is defined by a long counter from the front of the shop down one side, leaving the other side of the entry for the display…

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.

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Details

Case: [2007] NSWADT 193
Decision Date: 27 August 2007

CaseChat Overview and Summary

Thai Star Video Pty Limited brought a claim against Ari Walpole seeking a declaration of their rights, obligations, and liabilities under a lease. The matter was heard in the Supreme Court of Queensland. The primary issue was to determine the specific terms and conditions of the lease between the parties, particularly in relation to the sub-lease agreement and the potential termination of the lease.

The court needed to ascertain whether the sub-lease between Thai Star Video and Walpole would terminate on 15 July 2009 if Walpole did not exercise his option to extend the head lease. Additionally, the court had to decide whether the sub-lease would continue if Walpole remained in possession of the premises either as a tenant holding over under the current lease or under the lease that results from the exercise of the option. The interpretation of the lease terms and the applicability of the holding over clause were central to the court's decision.

Upon examining the lease agreement, the court found that the sub-lease between Thai Star Video and Walpole would indeed terminate on 15 July 2009 if Walpole did not exercise his four-year option for the head lease. However, if Walpole remained in possession of the premises either as a tenant holding over under the current lease or under the lease resulting from the exercise of the option, the sub-lease would continue until the end of Walpole's holding over under the head lease. The court's reasoning was grounded in the specific terms of the lease and the legal principles applicable to sub-leases and holding over provisions. The court granted the declaration sought by Thai Star Video and made no order for costs unless an application was made within the specified timeframe.

Orders

Orders of the court

1. Pursuant to s72(f)(iii) I declare that there exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor a retail shop lease for a term to end of 15 July 2013, but which must come to an end of 15 July 2009 if Ari Walpole does not exercise his four year option for the head lease. However, if Ari Walpole remains in possession of the premises as tenant holding over under the lease now registered on title, or under the lease which results from exercise of the option, then the sublease continues until the end of the holding over under the head lease. ; 2. Any application for costs to be made within 21 days. If an application is made, the applicant for costs is to file and serve submissions within 14 days and the respondent to that application is to file and serve submissions in reply within a further 14 days. Application to be determined on the papers. Otherwise no order for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thai Star Video Pty Limited v Walpole [2007] NSWADT 193
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT Thai Star Video Pty Limited FIRST RESPONDENTS Thaensa Walpole & Ari Walpole SECOND APPLICANT Ari Walpole SECOND RESPONDENT Thai Star Video Pty Limited
FILE NUMBER:	065156, 065184
HEARING DATES:	16 March 2007, 28 March 2007
SUBMISSIONS CLOSED:	28 March 2007
DATE OF DECISION:	27 August 2007
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Conveyancing Act 1919 Real Property Act 1900 Retail Leases Act 1994
CASES CITED:	Aspromonte Pty Limited v Zagari [1999] NSWSC Duncan’s Catering Pty Limited v Bankstown City Council [2005] NSW ADT 158 Four Seasons International Agricultural Pty Limited v Iacullo [2002] NSW ADT 91 Freetell Communications Pty Limited v In Eop Chung [2003] NSW ADT 169 Jarre Pty Limited v Vumbaca [1998] NSW Conv R 55-832 at 56,515-56,520 Protogeros v Fouzas [2004] NSW ADT 62 Randi Wixs Pty Limited v Pokana Pty Limited (No.2) [2003] NSW ADT 4 Rolet v Baron [2002] NSW ADT 316 Tribunal in Perhauz v SAF Properties Pty Limited [2007] NSW ADT 122 Whiteway House (No. 100) Pty Ltd v Abrocoona Pty Limited [1998] NSW SC 52
REPRESENTATION:	FIRST APPLICANT & SECOND RESPONDENT R Bellamy, barrister FIRST RESPONDENT & SECOND APPLICANT In person
ORDERS:	1. Pursuant to s72(f)(iii) I declare that there exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor a retail shop lease for a term to end of 15 July 2013, but which must come to an end of 15 July 2009 if Ari Walpole does not exercise his four year option for the head lease. However, if Ari Walpole remains in possession of the premises as tenant holding over under the lease now registered on title, or under the lease which results from exercise of the option, then the sublease continues until the end of the holding over under the head lease. ; 2. Any application for costs to be made within 21 days. If an application is made, the applicant for costs is to file and serve submissions within 14 days and the respondent to that application is to file and serve submissions in reply within a further 14 days. Application to be determined on the papers. Otherwise no order for costs.