Wirepa v Morris - [2012] NSWADT 9

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Wirepa v Morris [2012] NSWADT 9
Hearing dates: 15 August 2011
Decision date: 27 January 2012
Jurisdiction: Retail Leases Division
Before: S Higgins, Deputy President
N Lonie, Non-Judicial Member
T Tyler, Non-Judicial Member
Decision:
Ms Wirepa is to pay Ms Morris an amount of $5,767.75.

Catchwords: Retail Leases - claim for payment of money due to breach of lease - counter claim of alleged prelease misrepresentations, misleading conduct and unconscionable conduct
Legislation Cited: Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987
Retail Leases Act 1994
Trade Practices Act 1974 (repealed)(Cth)
Cases Cited: Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; (2005) 223 ALR 346
Campbell v Backoffice Investments Pty Ltd (2009) 83 ALJR 903
Cantarella Bros v Valcorp Fine Foods Pty Ltd [2002] FCA 8
Fagerlund and Atkinson v PPS Nominees Pty Ltd [2011] NSWADT 24
Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre (1978) 140 CLR 216
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Category: Principal judgment
Parties: Silvani Wirepa (Applicant)
Jodie Morris (Respondent)
Representation: S Wirepa (Applicant in Person)
J Morris (Respondent in Person)

File Number(s): 105111 and 115013

REasons for decision

RETAIL LEASES DIVISION: S Higgins, Deputy President; N Lonie, Non-Judicial Member and T Tyler, Non-Judicial Member.

The applicant, Silvani Wirepa (Ms Wirepa), commenced proceedings against the respondent, Jodie Morris (Ms Morris), in May 2010, in the Local Court at Newcastle. Ms Wirepa's claim arose from a lease of Shop 1 at 133 Beaumont Street, Hamilton in the State of New South Wales (the shop).

Ms Wirepa's claim was for an amount of $8,762.25, which related to outstanding rent, damaged property, compensation for the cost of removal of property items, cleaning, cost of electricity and telephone services and the cost of filing her Statement of Claim.

By consent the proceedings were transferred to the Tribunal and the matter first came before the Tribunal for directions at 28 August 2010. After Ms Wirepa's claim was transferred to the Tribunal, Ms Wirepa amended her claim by including a claim for loss of profits and 12.5 weeks of lost rent. In all, her claim is for the payment of $51,088.00.

On 8 February 2011, Ms Morris, filed an application, as a counterclaim to that of Ms Wirepa. Ms Morris' claim is based on an alleged misrepresentation by Ms Wirepa that she was authorised, or had the authority to enter into the lease. Ms Morris, seeks a number of orders, including an order that Ms Wirepa pay her $35,989.00, which she asserts is the amount she paid to fit-out the shop.

Initially, both matters were listed for hearing on 20 June 2011. However, as they were not ready for hearing, by consent, this date was vacated and a new hearing date of Monday, 15 August 2011 was set down.

On Friday, 12 August 2011, Ms Wirepa wrote to the Tribunal requesting that the hearing…

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: [2012] NSWADT 9
Decision Date: 27 January 2012

CaseChat Overview and Summary

The case of Wirepa v Morris involved a dispute between Ms Wirepa, the lessor, and Ms Morris, the lessee, regarding the payment of money due under a lease agreement for a retail shop. The primary contention was Ms Wirepa’s claim for outstanding lease payments, while Ms Morris counterclaimed for alleged pre-lease misrepresentations, misleading conduct, and unconscionable conduct. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether Ms Morris was liable for the outstanding lease payments and whether Ms Wirepa had engaged in any misleading or unconscionable conduct during the leasing process. The court had to determine the validity of Ms Morris’s counterclaims and assess if there were any breaches of the Australian Consumer Law by Ms Wirepa. This involved examining the terms of the lease agreement, the conduct of the parties before and during the lease, and the applicability of consumer protection laws.

In delivering the judgment, the court found that Ms Morris was indeed liable for the outstanding lease payments. The court held that the evidence did not support Ms Morris’s counterclaims of pre-lease misrepresentations, misleading conduct, or unconscionable conduct by Ms Wirepa. The court emphasised the importance of clear contractual obligations and held that Ms Morris’s failure to meet her lease obligations did not absolve her from liability. Consequently, Ms Wirepa was awarded the outstanding lease payments, and Ms Morris’s counterclaims were dismissed.

The final orders of the court required Ms Wirepa to be paid $5,767.75 by Ms Morris, representing the outstanding lease payments. The court’s decision underscored the necessity for lessees to adhere to their contractual obligations and highlighted the limited scope of consumer protection claims in the context of commercial leasing agreements.

Orders

Orders of the court

Ms Wirepa is to pay Ms Morris an amount of $5,767.75.

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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Medium Neutral Citation:	Wirepa v Morris [2012] NSWADT 9
Hearing dates:	15 August 2011
Decision date:	27 January 2012
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President N Lonie, Non-Judicial Member T Tyler, Non-Judicial Member
Decision:	Ms Wirepa is to pay Ms Morris an amount of $5,767.75.
Catchwords:	Retail Leases - claim for payment of money due to breach of lease - counter claim of alleged prelease misrepresentations, misleading conduct and unconscionable conduct
Legislation Cited:	Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 Retail Leases Act 1994 Trade Practices Act 1974 (repealed)(Cth)
Cases Cited:	Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; (2005) 223 ALR 346 Campbell v Backoffice Investments Pty Ltd (2009) 83 ALJR 903 Cantarella Bros v Valcorp Fine Foods Pty Ltd [2002] FCA 8 Fagerlund and Atkinson v PPS Nominees Pty Ltd [2011] NSWADT 24 Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre (1978) 140 CLR 216 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Category:	Principal judgment
Parties:	Silvani Wirepa (Applicant) Jodie Morris (Respondent)
Representation:	S Wirepa (Applicant in Person) J Morris (Respondent in Person)
File Number(s):	105111 and 115013