Vuong v Ladikos

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Vuong v Ladikos [2011] NSWADT 104

Hearing dates:

1 April 2011

Decision date:

17 May 2011

Jurisdiction:

Retail Leases Division

Before:

D Patten, Deputy President

Decision:

1. Application for summary dismissal pursuant to s 72 of the Administrative Decisions Tribunal Act 1997 dismissed.

2. No order as to costs of proceedings on 1 April 2011.

3. Case listed for Directions on 9 June 2011 at 10.00am.

Catchwords:

Summary dismissal - principles applicable - silence capable of constituting unconscionable conduct

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] 123 CLR 125
Hillier v Goodfellow (1988) V ConvR 54 - 310
Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd (2000) 10 BPR 18085
Legione v Hateley (1983) 152 CLR 406

Texts Cited:

K R Handley - Estoppel by Conduct and Election

Category:

Interlocutory applications

Parties:

Anh Nghi Vuong (Applicant)
Terry Ladikos (First Respondent)
Dimitra Ladikos (Second Respondent)

Representation:

Ms K Pham, Viet-Aust Lawyers (Applicant)
Mr J Jordan, Jordan Djundja Lawyers (Respondent)

File Number(s):

115035

REasons for decision

1. On 1 April 2011, for reasons then given, I dismissed the applicant's application for urgent interim relief. At the same time, I heard an application by the respondents to dismiss the proceedings as misconceived or lacking in substance, upon which application I reserved my decision.

1. The application relies solely on a claim that the respondents engaged in unconscionable conduct within s 62B of the Retail Leases Act 1994 (the Act). Such conduct if proved in the circumstances of this case could lead to an award of damages under s 72AA of the Act.

1. The evidence before me for the purposes of the application may be summarised as follows:

• For about 6 years the applicant has occupied as lessee premises known as 25A Morts Road, Mortdale (the premises).
• In the premises the applicant has conducted the business of a restaurant serving Vietnamese style food.
• The applicant's recent occupation of the premises has been pursuant to a lease granted by the respondents for a term of 3 years from 1January 2008 registered AE186463N (the lease).
• The lease constituted a retail shop lease within s 3 of the Act.
• The lease contained an option for renewal for a further term of 3 years exercisable by notice in writing given to the lessor not less than 6 months before the expiration of the term i.e. before 30 June 2010.
• In June 2010 the applicant orally informed the respondents' managing agent that he intended to exercise the option for renewal.
• On 1 October 2010 the applicant's solicitors, Viet-Aust Lawyers wrote to Jordan Djundja Lawyers the following letter, omitting formal parts:

RE: LADIKOS LEASE TO VUONG

PREMISES: SHOP 25A MORTS ROAD, MORTDALE NSW

BUSINESS: RESTAURANT

We refer to the above matter and understand that you act for the landlords, TERRY LADIKOS and DIMITRA LADIKOS.