Trowbridge v Morris - [2010] NSWADT 18

CITATION: Trowbridge v Morris [2010] NSWADT 18

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Michael Charles Trowbridge
RESPONDENT
Voula Morris

FILE NUMBER: 085161

HEARING DATES: 20 April 2009, 1 June 2009

SUBMISSIONS CLOSED: 14 September 2009

DATE OF DECISION:
19 January 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Retail Leases Act -Claim for payment of money - costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED: Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Laybutt, agent

ORDERS: 1. The applicant is to pay the Respondent an amount of $1,244.35
2. The applicant is to pay the Respondent’s costs, as agreed or assessed, of the hearing on 1 June 2009 and the written submissions filed on her behalf in accordance with the directions made on 1 June 2009.

REASONS FOR DECISION

1 This matter concerns premises known as Shop 8a in the Swansea Arcade at 172 Pacific Highway Swansea NSW (“the premises”). A lease for the premises dated 12 April 2005 (“the Lease”) identifies Mr Trowbridge as the lessee and the Respondent as lessor. The term of the Lease was one year commencing 1 June 2005, and with a 2 year option period. The rent is stated to be $808.50 per calendar month with provision for an increase during the option period.

2 Mr Trowbridge conducted a chiropractic practice in the premises from July 2004 until 30 October 2008.

3 Mr Trowbridge lodged an application with the Tribunal under the Retail Leases Act 1994 (“the Act”) on 15 August 2008. He identified his claim as a combined retail tenancy claim and unconscionable conduct claim: section 71 and 71A of the Act.

4 On 5 February 2009 Judicial Member Fox dismissed the unconscionable conduct claim. Consequently, the retail tenancy claim remained for determination. The matter came before me for hearing on 20 April 2009. The matter was not concluded on that date and was listed for further hearing on 1 June 2009. As the matter was again not concluded on that date I determined that the matter should be finalised on the basis of material filed without further hearing. I set a timetable to allow the parties to make further submissions. I directed that all material on which the parties relied be filed and served by 14 September 2009.

5 I note that Mr Trowbridge has continued to lodge further material after that date. I do not propose to take that further material into account.

Background

6 Mr Trowbridge purchased a chiropractic business conducted on the premises from Mr Craig Matthews effective 1 July 2004. Prior to the purchase, the landlord had consented to the transfer of the existing lease to Mr Trowbridge from Mr Matthews for the period from 1 June 2004 to 31 May 2005.

7 The parties entered the Lease on 12 April 2005. Mr Trowbridge subsequently exercised the option to renew the lease.

8 The issues in this matter arose from an incident…

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 [2010] NSWADT 18
Case: [2010] NSWADT 18
Decision Date: 19 January 2010

CaseChat Overview and Summary

In the matter of Trowbridge v Morris, the applicant, Trowbridge, sought an order for the payment of money from the respondent, Morris, under the Retail Leases Act. The matter was heard in the Local Court of New South Wales. The dispute centred around the interpretation and application of the Retail Leases Act, specifically in relation to a claim for payment made by the applicant. The applicant alleged that the respondent had not fulfilled certain financial obligations under the lease agreement, and sought a monetary remedy for the alleged breach.

The legal issues the court was required to decide included the interpretation of the relevant provisions of the Retail Leases Act and whether the respondent had indeed breached the terms of the lease agreement. The court had to determine the amount of money, if any, that was owed by the respondent to the applicant. Additionally, the court had to consider the costs incurred by the respondent in defending the claim, and whether the respondent was liable to pay those costs under the circumstances.

The court found in favour of the respondent, concluding that the applicant had not proven the alleged breach of the lease agreement. The court ruled that the applicant was not entitled to the payment sought and dismissed the claim. Furthermore, the court ordered the applicant to pay the respondent’s costs, as agreed or assessed, of the hearing on 1 June 2009 and the written submissions filed on the respondent's behalf, in accordance with the directions made on 1 June 2009. The amount of $1,244.35 was determined as the sum to be paid by the applicant to the respondent.

Orders

Orders of the court

1. The applicant is to pay the Respondent an amount of $1,244.35

2. The applicant is to pay the Respondent’s costs, as agreed or assessed, of the hearing on 1 June 2009 and the written submissions filed on her behalf in accordance with the directions made on 1 June 2009.

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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CITATION:	Trowbridge v Morris [2010] NSWADT 18
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Michael Charles Trowbridge RESPONDENT Voula Morris
FILE NUMBER:	085161
HEARING DATES:	20 April 2009, 1 June 2009
SUBMISSIONS CLOSED:	14 September 2009
DATE OF DECISION:	19 January 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Retail Leases Act -Claim for payment of money - costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
REPRESENTATION:	APPLICANT In person RESPONDENT J Laybutt, agent
ORDERS:	1. The applicant is to pay the Respondent an amount of $1,244.35 2. The applicant is to pay the Respondent’s costs, as agreed or assessed, of the hearing on 1 June 2009 and the written submissions filed on her behalf in accordance with the directions made on 1 June 2009.