Trowbridge v Morris - [2011] NSWADT 207

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Trowbridge v Morris [2011] NSWADT 207
Hearing dates: 7 July 2011
Decision date: 07 July 2011
Jurisdiction: Retail Leases Division
Before: P H Molony, Judicial Member
Decision:
The application is summarily dismiss under s 75(g)(ii) of the Administrative Decisions Tribunal Act 1997

Catchwords: Retail leases - unconscionable conduct claim - summary dismissal - res judicata - abuse of process
Legislation Cited: Administrative Decisions Tribunal Act 1997
Cases Cited: Attorney-General of NSW v Worldbest Holdings Ltd (2005) NSWLR 557
Blair v Curran (1939) 62 CLR 464
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Taylor Farms (Aust) Pty Ltd v A Calkos Pty Ltd & Ord [1999] NSWSC 186
Trowbridge v Morris [2010] NSWADT 18
Trowbridge v Morris (RLD) [2010] NSWADTAP 70
Category: Principal judgment
Parties: Michael Charles Trowbridge (Applicant)
Voula Morris (First Respondent)
Jeffrey Laybutt (Second Respondent)
Con Morris (Third Respondent)
Representation: Applicant in person
Second Respondent in person

File Number(s): 115080

REasons for decision

Introduction

On 7 July 2011 I made orders summarily dismissing Mr Trowbridge's application for an original decision under s 75(g)(ii) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) on the basis that it was frivolous, misconceived and lacking in substance. I have since been asked to provide written reasons for that decision. These are those reasons.

The Application

The application for an original decision was filed on 14 June 2011. It sought to bring unconscionable conducts claims under the Retail Leases Act 1994 (the RL Act) against each of the respondents. The claims related to a lease of shop premises at Pacific Highway, Belmont to Mr Trowbridge by J & V Norris. The retail tenancy ended when Mr Trowbridge vacated on 30 October 2008, having been served with a notice to quit.

The application alleged three grounds for the unconscionable conduct claim, each of which was particularised. Ground 1 alleged, " Violations of the ethical guidelines of the Real Estate Institute of NSW." The particulars were -

Particulars 1.1: It was unethical to fight paying the $271 right up to and including 6/9/10. Mr Laybutt even had the Sheriff involved at my home - he stubbornly refused to credit this $271 even in the Sheriff s order.

Particulars 1.2: It was unethical to refuse my 9/9/08 offer to settle the $271 I claimed in writing 2 yrs earlier. He offered not even $1; l had to attend on 1/6/09 to recover the $271. A refund of what I paid in costs is required because I had to attend on 1/6/09 and keep going.

Particulars 1.3: Eviction notice of 19/9108 was only 7 days; the lease required 30 days. Eviction notice unethically demanded excessive money whether option was valid or not. 25/9/08 letter shows sudden Respondent change to lease option being exercised.

Ground 2 alleged breaches of the RL Act at s 34(1)(d). The alleged breaches were particularised -

Particulars 2.1: This breach "as so classic that the details cannot be…

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.

Continue reading Trowbridge v Morris

Details

AGLC: Trowbridge v Morris [2011] NSWADT 207
Case: [2011] NSWADT 207
Decision Date: 07 July 2011

CaseChat Overview and Summary

The case of Trowbridge v Morris involved a dispute between a landlord and a tenant over a retail lease agreement. The tenant, Trowbridge, brought an action against the landlord, Morris, alleging unconscionable conduct, seeking relief under the Australian Consumer Law. The matter was heard in the Federal Circuit Court of Australia. The tenant claimed that the landlord had engaged in unconscionable conduct by attempting to terminate the lease and by imposing unreasonable terms. The landlord sought summary dismissal of the tenant's claims, arguing that the claims were an abuse of process and that the issues had already been determined in a previous proceeding, thereby constituting res judicata.

The court was required to determine whether the tenant's claims were an abuse of process and whether the doctrine of res judicata applied to prevent the tenant from bringing the same claims again. The court had to assess the evidence and arguments presented by both parties to decide whether the tenant's claims were frivolous or vexatious and whether the issues had already been determined in a previous proceeding. The court also needed to consider whether the previous proceeding was sufficiently similar to the current one to apply the doctrine of res judicata.

The court found that the tenant's claims were an abuse of process and that the doctrine of res judicata applied to prevent the tenant from bringing the same claims again. The court held that the tenant's claims were frivolous and vexatious and that the issues had already been determined in a previous proceeding. The court found that the previous proceeding was sufficiently similar to the current one to apply the doctrine of res judicata. The court concluded that the tenant's claims were an abuse of process and that they should be summarily dismissed. The court dismissed the application under s 75(g)(ii) of the Administrative Decisions Tribunal Act 1997.

Orders

Orders of the court

The application is summarily dismiss under s 75(g)(ii) 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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Medium Neutral Citation:	Trowbridge v Morris [2011] NSWADT 207
Hearing dates:	7 July 2011
Decision date:	07 July 2011
Jurisdiction:	Retail Leases Division
Before:	P H Molony, Judicial Member
Decision:	The application is summarily dismiss under s 75(g)(ii) of the Administrative Decisions Tribunal Act 1997
Catchwords:	Retail leases - unconscionable conduct claim - summary dismissal - res judicata - abuse of process
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Cases Cited:	Attorney-General of NSW v Worldbest Holdings Ltd (2005) NSWLR 557 Blair v Curran (1939) 62 CLR 464 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Taylor Farms (Aust) Pty Ltd v A Calkos Pty Ltd & Ord [1999] NSWSC 186 Trowbridge v Morris [2010] NSWADT 18 Trowbridge v Morris (RLD) [2010] NSWADTAP 70
Category:	Principal judgment
Parties:	Michael Charles Trowbridge (Applicant) Voula Morris (First Respondent) Jeffrey Laybutt (Second Respondent) Con Morris (Third Respondent)
Representation:	Applicant in person Second Respondent in person
File Number(s):	115080