Baptiste & Wilson Pty Ltd ATF But I want a Pickle Trust v Sophios Pty Ltd [2019] NSWCATCD 80

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baptiste & Wilson Pty Ltd ATF But I want a Pickle Trust v Sophios Pty Ltd [2019] NSWCATCD 80 Hearing dates: 18 April 2019 and 2 May 2019 Date of orders: 16 October 2019 Decision date: 16 October 2019 Jurisdiction: Consumer and Commercial Division Before: G Ulman, Senior Member Decision: (1) The respondent pay the applicant by way of damages the sum of $18,500 within 14 days. (2) The application is otherwise dismissed. Catchwords: Retail lease – former tenant's claim for return of equipment, stock-in-trade and damages – whether equipment and stock-in-trade forfeited to landlord on termination of the lease – calculation of damages Legislation Cited: Retail Leases Act 1994 Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Martin v King (1996) 7 BPR 14,681 Palermo Seafoods Pty Ltd V Lunapas Pty (No 2) [2014] NSWSC 1323 Texts Cited: Nil Category: Principal judgment Parties: Baptiste & Wilson Pty Ltd ATF But I want a Pickle Trust (Applicant) Sophios Pty Ltd (Respondent) Representation: Mr J Hancock, Lay advocate (Applicant) Mr A Fernon, Barrister (Respondent)

Solicitors: Wilshire Webb Staunton Beattie, Lawyers (Respondent) File Number(s): COM 18/16626 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This as an application by the former tenant of a café at Rose Bay ("the premises") against its former landlord who, on 6 March 2018, re-entered the premises thereby terminating the lease for non-payment of rent. 2. The applicant blames the respondent for the loss of its business alleging, amongst other things, that it engaged in misleading and deceptive conduct and unconscionable conduct. However, the claim that was ultimately pursued at the hearing was for the return of various items of equipment and stock in trade that were in the premises when the respondent re-entered. In the alternative, the applicant claims damages for the equipment and stock in trade sold by the respondent to a company that now leases the premises. It also seeks the return of a bank guarantee or the cash equivalent, provided to the respondent as security for its obligations under the lease. 3. The respondent denies the applicant's claim and says that it was entitled to sell the equipment and stock in trade.