Trowbridge v Morris (RLD) - [2010] NSWADTAP 70

Appeal Panel - Internal

CITATION: Trowbridge v Morris (RLD) [2010] NSWADTAP 70

PARTIES:
APPELLANT
Michael Charles Trowbridge
RESPONDENT
Voula Morris

FILE NUMBER: 109012

HEARING DATES: 6 September 2010

SUBMISSIONS CLOSED: 6 September 2010

DATE OF DECISION:
5 November 2010

BEFORE: O'Connor K - DCJ (President); Higgins S - Deputy President; Ward R - Non-Judicial Member

CATCHWORDS: Retail Leases - Appeal - error in calculation of amount of final order - procedural fairness - costs - small claims - fixed amount costs orders - orders varied - otherwise, appeal dismissed

DECISION UNDER APPEAL: Trowbridge v Morris [2010] NSWADT 18

FILE NUMBER UNDER APPEAL: 085161

DATE OF DECISION UNDER APPEAL: 01/19/2010

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

CASES CITED: Trowbridge v Morris [2010] NSWADT 18
World Best Holdings Limited v Sarker [2010] NSWCA 24

REPRESENTATION:
APPELLANT
In person
RESPONDENT
J Laybutt, agent

ORDERS: 1. Appeal dismissed except as follows.
2. Orders made below varied as follows:
(i) In respect of the respective retail tenancy claims, the Appellant to pay the Respondent the amount of $570.
(ii) In respect of the proceedings before the Retail Leases Division, the Appellant to pay the Respondent's costs fixed at $1876.75.
3. In respect of the appeal:
(iii) Appellant to pay the Respondent's costs of the appeal, fixed at $350.

1 This is an appeal against the decision of the Retail Leases Division of the Tribunal in respect of retail tenancy claims lodged by a tenant and lessor under the Retail Leases Act 1994. The decision is Trowbridge v Morris [2010] NSWADT 18.

2 The tenant is Mr Trowbridge, a chiropractor. He was the lessee of a shop in the Swansea Arcade, shop 8A, from where he conducted his practice in the period 1 July 2004 to 30 October 2008. At the beginning he held the lease by way of assignment of the pre-existing lease. In April 2005 the lessor, Ms V Morris, granted him a new lease for one year with a two year option, commencing 1 June 2005.

3 Though Mr Trowbridge did stay on at the shop, he never effectively exercised the option. The parties could not agree on a rent increase proposed by the lessor under the rent review clause of the lease for the year commencing 1 July 2006. For the years commencing 1 July 2007 and 1 July 2008, the lessor again proposed a rent increase. Mr Trowbridge continued to dispute the appropriateness of the rent increases. Through the years mentioned he continued paying rent at the rate set in the lease agreed in April 2005, i.e. $808.50 per month. On 19 August 2008 the lessor gave him notice to quit on the ground that he was in arrears. On 21 August 2008 Mr Trowbridge filed the application in the Tribunal that underlies this appeal.

4 In the application he referred to a long-running dispute between him and the lessor over incursions of rain into his premises, for which he did not believe he…

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 (RLD)

Details

AGLC: Trowbridge v Morris (RLD) [2010] NSWADTAP 70
Case: [2010] NSWADTAP 70
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case involved a dispute between Trowbridge and Morris, with the proceedings taking place in the Retail Leases Division of the Civil and Administrative Tribunal of New South Wales. The nature of the dispute was primarily centered around the calculation of the final order amount in the retail lease agreement. The case was appealed to a higher court, which examined the correctness of the initial decision regarding the amount owed and the procedural fairness of the proceedings.

The central legal issues that the court had to decide included whether there was an error in the calculation of the final order amount, if the proceedings were conducted in a procedurally fair manner, and the appropriateness of the costs awarded in both the initial proceedings and the appeal. The court also needed to address whether the fixed amount costs orders were appropriate, given the small claims nature of the case.

In its reasoning, the court found that while there was an error in the calculation of the final order amount, the overall procedural fairness of the proceedings was upheld. The court corrected the calculation error, reducing the amount owed by the Appellant to the Respondent to $570. Regarding costs, the court varied the orders to reflect fixed costs of $1876.75 for the initial proceedings and $350 for the appeal, considering the small claims nature and the fixed costs regime applicable in such cases. The court dismissed the appeal in all other respects.

Orders

Orders of the court

1. Appeal dismissed except as follows.

2. Orders made below varied as follows:

(i) In respect of the respective retail tenancy claims, the Appellant to pay the Respondent the amount of $570.

(ii) In respect of the proceedings before the Retail Leases Division, the Appellant to pay the Respondent's costs fixed at $1876.75.

3. In respect of the appeal:

(iii) Appellant to pay the Respondent's costs of the appeal, fixed at $350.

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 (RLD) [2010] NSWADTAP 70
PARTIES:	APPELLANT Michael Charles Trowbridge RESPONDENT Voula Morris
FILE NUMBER:	109012
HEARING DATES:	6 September 2010
SUBMISSIONS CLOSED:	6 September 2010
DATE OF DECISION:	5 November 2010
BEFORE:	O'Connor K - DCJ (President); Higgins S - Deputy President; Ward R - Non-Judicial Member
CATCHWORDS:	Retail Leases - Appeal - error in calculation of amount of final order - procedural fairness - costs - small claims - fixed amount costs orders - orders varied - otherwise, appeal dismissed
DECISION UNDER APPEAL:	Trowbridge v Morris [2010] NSWADT 18
FILE NUMBER UNDER APPEAL:	085161
DATE OF DECISION UNDER APPEAL:	01/19/2010
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Trowbridge v Morris [2010] NSWADT 18 World Best Holdings Limited v Sarker [2010] NSWCA 24
REPRESENTATION:	APPELLANT In person RESPONDENT J Laybutt, agent
ORDERS:	1. Appeal dismissed except as follows. 2. Orders made below varied as follows: (i) In respect of the respective retail tenancy claims, the Appellant to pay the Respondent the amount of $570. (ii) In respect of the proceedings before the Retail Leases Division, the Appellant to pay the Respondent's costs fixed at $1876.75. 3. In respect of the appeal: (iii) Appellant to pay the Respondent's costs of the appeal, fixed at $350.