Wanice Pty Ltd v Bocove Pty Ltd

CITATION:	Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADT 17
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT Wanice Pty Ltd FIRST RESPONDENT Bocove Pty Ltd SECOND APPLICANT Bocove Pty Ltd SECOND RESPONDENT Wanice Pty Ltd
FILE NUMBER:	025094; 025130
HEARING DATES:	11/11/2002
SUBMISSIONS CLOSED:	11/11/2002
DATE OF DECISION:	01/24/2003
BEFORE:	Donald BG - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Aspromonte Pty Ltd v Zagari [1999] NSW SC831
REPRESENTATION:	FIRST APPLICANT M Scheib, barrister SECOND APPLICANT R Olsen, agent FIRST RESPONDENT R Olsen, agent SECOND RESPONDENT M Scheib
ORDERS:	The Lessee shall pay the Lessor the sum of $10,970.54 plus interest of $1,517.54 on 14 February 2003 i.e. a total of $12,488.08

1 This is, first, an application by a Lessor, Wanice Pty Ltd, to recover unpaid rent and outgoings from the Lessee, Bocove Pty Ltd under a registered Lease 6405462A executed on 17 May 1999 with an expressed commencement date of 8 April 1999 for a five year term with a five year option.

2 The matter was commenced in the Local Court on 7 May 2002 but transferred to this Tribunal pursuant to s.75 of the Retail Leases Act 1994, being received on 14 August 2002.

3 Secondly, the Lessee filed a cross-application on 8 November 2002 seeking a declaration concerning an alleged breach of s.9 of the Act (re failure to provide a prior copy of the lease), declarations concerning outgoings and further orders.

4 The matter was heard on 11 November 2002. During the hearing the Tribunal raised with the parties the implications of the Lessee having entered into possession of the premises on 16 March 1999 with the Disclosure Statement and the lease documentation following on or about 8 April 1999, the Lease being executed on or about 17 May 1999. The attention of the parties was drawn to the provisions of the Act including s.8 and the decision of the Supreme Court in Aspromonte Pty Ltd v Zagari [1999] NSW SC831. The Tribunal requested the parties to file further written submissions on that issue and other issues concerning the application of s.22, 27-29 of the Act to the claim for outgoings. The Lessor filed submissions in that regard on 12 December 2002, no submission being received from the Lessee.

Findings of fact

5 Since 1995, the Lessee ran an established business as a film processor and photographic equipment retailer in the Town Hall Shopping Arcade Sydney. In early 1999 it decided to expand and seek another shop for lease.

6 Between 8 and 16 March 1999 a director of the Lessee, Mr Olson, had discussions with the agent for the Lessor concerning Shop 7/348-354 Sussex Street, Sydney, and on 16 March 1999 they agreed to a lease at a rental of $685 per week.

7 Mr Olson gave evidence that in the conversation on 16 March the Lessor’s…