Webb v. Clifton - [2008] NSWADT 132

CITATION: Webb v Clifton [2008] NSWADT 132

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Barry Webb
RESPONDENT
Tony Clifton

FILE NUMBER: 085049

HEARING DATES: 27 March 2008, 1 April 2008

SUBMISSIONS CLOSED: 1 April 2008

DATE OF DECISION:
1 April 2008

BEFORE: Molloy GB - Judicial Member

CATCHWORDS: Interim order - removal of goods

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Holden Tourism & Hospitality Pty Limited v Baldock [2001] NSWADT 123
Nam v Commonwealth Funds Management [2002] NSWADT 80
Nam v Commonwealth Funds Management Limited (No 2) [2002] NSWADT 120
Spuds Surf Chatswood Pty Limited v P T Limited [2007] NSWADT 130

REPRESENTATION:
APPLICANT
In person
RESPONDENT
In person

ORDERS: 1. I rescind the Orders made 27 March 2008
2. The Respondent, on Wednesday 2 April 2008 from 9.00am until 10.00pm and thereafter on each week day and weekend between the hours of 9.00am and 10.00pm until 5.00pm 13 April 2008, permit the Applicant access to the premises; 74-78 Bloomfield Street, Gunnedah for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment
3. The proceedings are adjourned to 24 April 2008 at 12 noon with a view to dismissal
4. Liberty to apply
5. The Registrar is requested to take out a copy of this ex-tempore decision and provide a copy to the parties.

REASONS FOR DECISION
Background

1 The Applicant is one of the lessees of premises, 74-78 Bloomfield Street, Gunnedah, pursuant to a lease dated 1 March 2006. The Respondent is one of the lessors. (There was no issue that all contract parties were appropriately represented and before the Tribunal). The lease is for a term of three years with a three year option, commencing 1 March 2006 and ending 28 February 2009 subject, of course, to the three year option.

2 The lease provides that the Applicant, as lessee, will pay $1,191.66, inclusive of GST, for the first six months and I take it that that is monthly. The premises are to be used as a secondhand furniture and sundry sales purposes. Under clause 9 of the lease the Applicant has covenanted “To pay rent promptly, and in advance and in the manner that the landlord [that is the Respondent] may direct from time to time.”

3 There are provisions in the lease for giving the Applicant, as lessee, notice, and those provisions are in clauses 29, 31(b) relevantly, 31(b)(2), 31(h), 31(i).

Application

4 The Applicant, by Application for Original Decision filed 19 March 2008, sought an order, “To be let back into the shop to remove all the stock, return to owner theirs and take our own.” The Applicant also filed, in the Tribunal, an Application for Urgent Interim Order on 19 March 2008 seeking a similar order, asserting that the conduct of the Respondent was unconscionable. The Applicant asserted that no notice was given, verbal or written, and the actions of the Respondent were,…

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.

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Details

Case: [2008] NSWADT 132
Decision Date: 1 April 2008

CaseChat Overview and Summary

In the matter of Webb v. Clifton, the dispute arose from an interim application concerning the removal of goods from a property located at 74-78 Bloomfield Street, Gunnedah. The Applicant sought an order to allow access to the property to remove goods owned by them or in their possession for sale by consignment. The Respondent, Clifton, opposed the application, leading to the matter being heard in court.

The legal issues the court was required to decide included whether the Applicant had a legitimate interest in the goods to be removed from the property and if the conditions for granting the interim order were met. The Applicant needed to demonstrate that they had a reasonable prospect of success at the final hearing and that there were compelling circumstances justifying the interim relief.

The court found that the Applicant had established a legitimate interest in the goods and that there were compelling circumstances to grant the interim order. The court rescinded the previous orders made on 27 March 2008 and directed the Respondent to permit the Applicant access to the premises on specified dates and times to remove the goods. The court also adjourned the proceedings to 24 April 2008 with a view to dismissal, provided the Registrar took out a copy of the decision and provided it to the parties.

Orders

Orders of the court

1. I rescind the Orders made 27 March 2008 2. The Respondent, on Wednesday 2 April 2008 from 9.00am until 10.00pm and thereafter on each week day and weekend between the hours of 9.00am and 10.00pm until 5.00pm 13 April 2008, permit the Applicant access to the premises; 74-78 Bloomfield Street, Gunnedah for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment 3. The proceedings are adjourned to 24 April 2008 at 12 noon with a view to dismissal 4. Liberty to apply 5. The Registrar is requested to take out a copy of this ex-tempore decision and provide a copy to the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Webb v Clifton [2008] NSWADT 132
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Barry Webb RESPONDENT Tony Clifton
FILE NUMBER:	085049
HEARING DATES:	27 March 2008, 1 April 2008
SUBMISSIONS CLOSED:	1 April 2008
DATE OF DECISION:	1 April 2008
BEFORE:	Molloy GB - Judicial Member
CATCHWORDS:	Interim order - removal of goods
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Holden Tourism & Hospitality Pty Limited v Baldock [2001] NSWADT 123 Nam v Commonwealth Funds Management [2002] NSWADT 80 Nam v Commonwealth Funds Management Limited (No 2) [2002] NSWADT 120 Spuds Surf Chatswood Pty Limited v P T Limited [2007] NSWADT 130
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	1. I rescind the Orders made 27 March 2008 2. The Respondent, on Wednesday 2 April 2008 from 9.00am until 10.00pm and thereafter on each week day and weekend between the hours of 9.00am and 10.00pm until 5.00pm 13 April 2008, permit the Applicant access to the premises; 74-78 Bloomfield Street, Gunnedah for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment 3. The proceedings are adjourned to 24 April 2008 at 12 noon with a view to dismissal 4. Liberty to apply 5. The Registrar is requested to take out a copy of this ex-tempore decision and provide a copy to the parties.