Wanice Pty Ltd v Bocove Pty Ltd

Appeal Panel - Internal

CITATION:	Wanice Pty Ltd v Bocove Pty Ltd (RLD) [2003] NSWADTAP 24
PARTIES:	APPELLANT Wanice Pty Ltd RESPONDENT Bocove Pty Ltd
FILE NUMBER:	039010
HEARING DATES:	26/05/2003
SUBMISSIONS CLOSED:	05/26/2003
DATE OF DECISION:	07/07/2003
DECISION UNDER APPEAL:	Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADT 17
BEFORE:	Chesterman M - ADCJ (Deputy President); Hole M - Judicial Member; Weule B - Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	025094
DATE OF DECISION UNDER APPEAL:	01/24/2003
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Cronulla Newsagency Pty Ltd v Pizzata & Ors [2002] NSWADT 121 Codelfa Construction Pty Ltd v State Rail of New South Wales (1982) 149 CLR 337
REPRESENTATION:	APPELLANT M G Scheib, barrister RESPONDENT R Olsen, agent
ORDERS:	1 Appeal allowed; 2 Respondent to pay $13,516.02 to Appellant

1 This is an appeal by the Appellant Lessor, Wanice Pty Ltd, against an order of the Tribunal dismissing its claim for the payment of outgoings by the Respondent Lessee, Bocove Pty Ltd, under a Lease executed on 17 May 1999. The Lease was registered under the Retail Leases Act 1994 (hereafter “the Act”). It had an expressed commencement date of 8 April 1999 and was for a five-year term, with a five-year option.

2 Due to differences between the parties, the Respondent vacated the premises on 1 April 2001. The Appellant indicated that it considered the Respondent to remain liable for rent and outgoings. The lease came to an end on 3 August 2001 pursuant to a Deed of Surrender.

3 The Appellant’s claim in the proceedings was for unpaid rent as well as outgoings. The Respondent lodged a cross application seeking a declaration that it was not liable for the outgoings. It also sought a declaration regarding an alleged breach of s 9 of the Act.

4 In the judgment of the Tribunal dated 24 January 2003, Mr Bruce Donald, Judicial Member, ordered that the Respondent pay to the Appellant the total sum of $12,488.08. This had two components: an amount of $10,970.54 (representing unpaid rent of $19,875.54 up to the date of surrender, less a security deposit of $8,905) and interest totalling $1,517.54. He dismissed the claim for unpaid outgoings and the Respondent’s claim for a declaration that the Appellant had breached the requirements of s 9.

5 This appeal is brought against the Tribunal’s dismissal of the Appellant’s claim for unpaid outgoings. In the Notice of Appeal, the amount of these outgoings up to the date of surrender was stated as $11,516.83. Interest was also claimed under s 72A of the Act.

6 Item 13 of the Schedule to the Lease stated that the Respondent, as Lessee, was liable to pay 100% of the following outgoings: (a) local council rates and charges; water, sewage and drainage charges; (c) land tax; and (d) Strata Management Costs/Strata Levey (sic). This obligation was also set out in the Lessor’s Disclosure Statement.

7 Although the Respondent testified…