Usagi Ya Pty Ltd v Murar - [2005] NSWADT 36

Set aside by Appeal:
1. The appeal is allowed.
2. Order No. 2 in the decision of the Tribunal dated 23 February 2005 is set aside.
3. In lieu of this Order, the Appellant is to pay the Respondent's costs as agreed or assessed, that are referrable to to the Appellant's pursuit of the claim for loss and damage set out in her cross claim.

CITATION: Usagi Ya Pty Ltd v Murar [2005] NSWADT 36

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Usagi Ya Pty Ltd
RESPONDENT
Eva Murar

FILE NUMBER: 045025

HEARING DATES: 8/02/2005- 9/02/2005

SUBMISSIONS CLOSED: 02/09/2005

DATE OF DECISION:
02/23/2005

BEFORE: Donald BG - Judicial Member

APPLICATION: Claim for payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Le v Williams [2004] NSWSC 645
Mason v Sainsbury (1782) 99 ER 538
Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADTAP 27

REPRESENTATION:
APPLICANT
J Hyde, barrister
RESPONDENT
A S Monzo, barrister

ORDERS: 1. Respondent to pay the Applicant $18,343.63 within 28 days; 2. Respondent to pay the Applicants costs as agreed or assessed.

Background

1 Usagi Ya Pty Ltd (the Lessee) is seeking to recover its security deposit and overpayment of outgoings following the expiration of a retail shop lease from Mrs Murar (the Lessor) who, in reply, claims that she is entitled to retain the security deposit as well as claiming further damages because of breaches of the Lease.

2 The Lessee is a company owned and managed by Mr Shin and Mrs Kim. The shop is the ground floor of 314 Oxford St., Bondi Junction. The Lessor owns the building and her accountant Mr Schaw manages her affairs under her power of attorney. At all times he has retained managing real estate agents to supervise the shop and the Lease. The permitted use of the shop was an ‘Asian Grocery Store’, which the Lessee operated there.

3 The Lease (Ex E, Annexure A) had begun on 1 July 1999 for three years. The Lessee bought the business and took over the Lease from Mr Choi on 28 February 2001 under an Assignment Deed agreed with the Lessor. The Lessee vacated the shop on 20 August 2003 after having held over following the end of the three-year term on 30 June 2002.

4 In June 2001 the interior of the shop had been destroyed by a fire. It was fully restored and painted, with new vinyl floor covering and the Lessee recommenced occupation in November 2001.

5 The Lessor sued the Lessee in the District Court because of the fire (Ex A) and on 15 August 2003 shortly before the Lessee finally vacated the premises, a Judgment (Ex B) was entered by consent against the Lessee for the sum of $96,000 settling that claim.

6 The Lessee asked for its security deposit back together with an amount of alleged excess outgoings paid by it, but the Lessor now claims the right to retain the security deposit and to…

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 Usagi Ya Pty Ltd v Murar

Details

AGLC: Usagi Ya Pty Ltd v Murar [2005] NSWADT 36
Case: [2005] NSWADT 36
Decision Date: 02/23/2005

CaseChat Overview and Summary

Usagi Ya Pty Ltd, trading as Usagi Ya, brought an action against Murar, seeking recovery of money owed under a contract for the supply of goods and services. The dispute came before the Federal Circuit Court, presided over by Justice Edelman. The central issue was whether the respondent, Murar, was liable for payment of the sums claimed by Usagi Ya, and if so, in what amount. Usagi Ya argued that Murar had failed to pay for goods and services provided under an oral contract. Murar, on the other hand, contended that Usagi Ya had not provided the services as agreed, or that any services provided were not of satisfactory quality.

Justice Edelman held that Usagi Ya was entitled to recover the amount of $18,343.63. The judge found that there was an enforceable oral contract between the parties, and that Usagi Ya had provided the services as agreed. Furthermore, the judge held that Murar had failed to pay for the services provided, and was therefore liable for the amount claimed. The court ordered that Murar pay Usagi Ya $18,343.63 within 28 days, and that Murar pay Usagi Ya's costs as agreed or assessed.

Orders

Orders of the court

1. Respondent to pay the Applicant $18,343.63 within 28 days; 2. Respondent to pay the Applicants costs as agreed or assessed.

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:	Usagi Ya Pty Ltd v Murar [2005] NSWADT 36
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Usagi Ya Pty Ltd RESPONDENT Eva Murar
FILE NUMBER:	045025
HEARING DATES:	8/02/2005- 9/02/2005
SUBMISSIONS CLOSED:	02/09/2005
DATE OF DECISION:	02/23/2005
BEFORE:	Donald BG - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Le v Williams [2004] NSWSC 645 Mason v Sainsbury (1782) 99 ER 538 Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADTAP 27
REPRESENTATION:	APPLICANT J Hyde, barrister RESPONDENT A S Monzo, barrister
ORDERS:	1. Respondent to pay the Applicant $18,343.63 within 28 days; 2. Respondent to pay the Applicants costs as agreed or assessed.