Yao v Cambooya Properties Pty Ltd

CITATION:	Yao & Anor v Cambooya Properties Pty Ltd [2004] NSWADT 55
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Wei Ming Yao & Jain Mei Qian RESPONDENT Cambooya Properties Pty Ltd
FILE NUMBER:	035081
HEARING DATES:	24/11/2003
SUBMISSIONS CLOSED:	03/05/2004
DATE OF DECISION:	03/18/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Fairweather R - Member; Harrison B - Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Damages - Unconscionability
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 Bragg v Alam [1981] 1 NSWLR 668 Butcher v Lachlan Elder Realty; Harkins v Butcher [2002] NSWCA 237 Harries v Bryant (1827) 4 Russ 89; 38 ER 738 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407; 66 ALJR 399 Olsson v Dyson (1969) 120 CLR 365 Tessari v Bais Pty Ltd (1992) 60 SASR 59
REPRESENTATION:	APPLICANT D Gasic, barrister RESPONDENT R Bellamy, barrister
ORDERS:	1. Application dismissed; 2. Liberty to apply within 28 days to argue costs.If no application within that time, no order for costs

1 In this matter, the Applicant Lessees claim remedies against the Respondent Lessor on the following basis. They allege that ISPT Pty Ltd (‘ISPT’), the Respondent’s predecessor in title to the leased premises, refused to grant a new lease to them even though they had sufficiently indicated to ISPT’s agent, Mr Michael Ryan, that they wished to exercise a valid option of renewal for three years contained in an existing lease. They allege further that in the circumstances of the case the Respondent, as successor in title to ISPT, is amenable to the same or similar remedies as might be obtained by them against ISPT.

2 The lease in question (‘the Lease’) was of retail shop premises at Shop 1, 63-79 Parramatta Road, Silverwater (‘the premises’). The business carried on in the premises was that of a cafeteria. The Lease was governed by the Retail Leases Act 1994 (‘the Act’).

3 The remedies that the Applicants seek are: (a) a declaration under s 72(f)(iii) of the Act that they validly exercised the option to renew the Lease; (b) an order under s 72(c)(i) or (iv) that the Respondent grant them a new lease for the term of three years specified in the clause conferring the option; and (c) an award of damages under s 72(1)(a) (for breach of contract) or s 72AA(1)(a) (for unconscionable conduct) to compensate them for the loss of goodwill of the business and/or its value.

The earlier dealings involving the parties and their predecessors

4 The Lease was originally granted by Pendal Nominees Pty Ltd, a previous owner of the premises, to Thomas Laming and Yvonne Laming for the period from 1 September 1990 to 31 August 1998. During 1995, it was assigned to Barry Enterprises Pty Ltd.

5 As part of this transaction…