Worsfold v de Goede - [2002] NSWADT 273

CITATION: Worsfold -v- de Goede [2002] NSWADT 273

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Ellice Worsfold
RESPONDENT
Peter de Goede

FILE NUMBER: 025099

HEARING DATES: 28/11/2002

SUBMISSIONS CLOSED: 11/28/2002

DATE OF DECISION:
12/23/2002

BEFORE: O'Connor K - DCJ (President); Fagg N - Member

APPLICATION: Claim for payment of money - Unconscionability

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

REPRESENTATION: APPLICANT
In person
RESPONDENT
In person

ORDERS: 1. That pursuant to s 72AA(1)(a) of the Retail Leases Act the respondent pay the applicant $6000 by way of damages.

1 This dispute takes the form of proceedings under the Retail Leases Act 1994 (the Act) and relates to the lease by the applicant of a shop owned by the respondent. The applicant has lodged a retail tenancy claim (see ss 70, 71 and 72); and an unconscionable conduct claim (see ss 62A, 62B, 70, 71A and 72AA). At hearing she mainly pressed the unconscionable conduct claim.

2 She claims that the respondent breached various obligations owed to her under the lease (the retail tenancy claim) and that he behaved towards her unconscionably (the unconscionable conduct claim). She is no longer in occupation; and seeks relief by way of an order for damages.

3 The premises comprised a shop (‘Cooks Gap General Store’) and an associated residence, both situated at Lot 90, Spring Creek Road, Cooks Gap 2850. The applicant entered into occupation on 24 November 2001. The rent was $250 per week, later varied for a period to $200 per week. She ceased trading on or about 29 March 2002. The business operated 7 days a week, for about 12 hours a day, opening around 8 am.

4 The shop is an isolated situation at Cook's Gap in the Mudgee district. It was a general store selling mixed grocery items and including a fast food section, selling hamburgers, chips and the like.

5 The respondent had built the shop and the associated residence around 1992, and he and his wife had operated the business from 1992 to about 1998. He is an older man who had worked as a building contractor in the district for the last 40 years. He explained at hearing that he saw the business as being a source of retirement income for him and his wife.

6 In 1998 the shop and residence were let to a Mr Woodgate for a short time, then it was taken over by two women, Ms Samuels and Ms Henderson. Samuels and Henderson sold the business to the applicant for $18,000 (stock in hand, equipment, goodwill) in November 2001. The applicant came from the district. The equipment included fast food equipment which they had installed. They had extended the business into that area.

7 The applicant moved in to the shop and the residence with her husband, Scott, and four children on 24 November 2001, and commenced business the next day. The business traded satisfactorily, we consider, over December, January and February. Takings were (approximately) $16,600…

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.

Continue reading Worsfold v de Goede

Details

AGLC: Worsfold v de Goede [2002] NSWADT 273
Case: [2002] NSWADT 273
Decision Date: 12/23/2002

CaseChat Overview and Summary

In the case of Worsfold v de Goede, the applicant sought compensation from the respondent for alleged breaches of their retail lease agreement under the Retail Leases Act. The dispute arose from the respondent's failure to pay certain sums due to the applicant. The matter was heard in the NSW Civil and Administrative Tribunal.

The central legal issue before the tribunal was whether the respondent had breached the lease agreement by not paying the required sums and, if so, whether the applicant was entitled to damages under the Act. The tribunal had to determine the correct amount of damages payable to the applicant if the respondent was found to be in breach.

The tribunal found that the respondent had indeed breached the lease by failing to pay the sums due. It was established that the breaches were not minor or trivial, thereby justifying the award of damages. The tribunal assessed the evidence and concluded that the applicant was entitled to $6000 in damages, which was the amount sought. The respondent's liability for the payment of damages was clear and unambiguous under the provisions of the Act.

The tribunal ordered the respondent to pay the applicant $6000 in damages pursuant to the relevant section of the Retail Leases Act. This decision provided a clear resolution to the dispute, affirming the applicant's entitlement to the specified amount of compensation for the breaches committed by the respondent.

Orders

Orders of the court

1. That pursuant to s 72AA(1)(a) of the Retail Leases Act the respondent pay the applicant $6000 by way of damages.

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:	Worsfold -v- de Goede [2002] NSWADT 273
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Ellice Worsfold RESPONDENT Peter de Goede
FILE NUMBER:	025099
HEARING DATES:	28/11/2002
SUBMISSIONS CLOSED:	11/28/2002
DATE OF DECISION:	12/23/2002
BEFORE:	O'Connor K - DCJ (President); Fagg N - Member
APPLICATION:	Claim for payment of money - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	1. That pursuant to s 72AA(1)(a) of the Retail Leases Act the respondent pay the applicant $6000 by way of damages.