Botts -v- Grimme (RLD) [2001] NSWADTAP 15

Appeal Panel

CITATION: Botts -v- Grimme (RLD) [2001] NSWADTAP 15 APPLICANT PARTIES: Gertrude Evans Botts RESPONDENT Heindrich Willhelm Torsten Grimme FILE NUMBER: 019008 HEARING DATES: 30/04/2001 SUBMISSIONS CLOSED: 04/30/2001 DATE OF DECISION: 05/30/2001

Botts -v- Grimme [2001] NSWADT 14 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Molloy GB - Judicial Member; O'Neill A - Member CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 005033 DATE OF DECISION UNDER APPEAL: 02/05/2001 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: Botts v Grimme [2001] NSWADT 14 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 APPELLANT REPRESENTATION: In person RESPONDENT In person ORDERS: 1 By agreement of the parties, the Appeal Panel directs that the orders made by the Tribunal below be amended as set out in para [10] of these reasons.; 2 The orders (as amended) under appeal are affirmed.

Background 1 The appellant is the lessee of certain premises at 249 Riley Street, Surry Hills, where she conducts the business of an art gallery and coffee shop. She has conducted business at this location since 1992, with a formal lease first being executed in 1994, commencing 1 April 1994. In an application filed on 3 July 2000 under the Retail Leases Act 1994 she sought various orders against the lessor. That application was met by a counter application from the lessor filed on 16 August 2000. The lessor is the respondent to the appeal. 2 After a hearing that took place over three days the Retail Leases Division of the Tribunal (the Tribunal) made the following orders in its decision delivered on 5 February 2001(Botts v Grimme [2001] NSWADT 14): '1. Applicant entitled to Lease of the premises known as 249 Riley Street, being art gallery, coffee shop and residential rooms at rear and above, with common use of the rear courtyard, for a term commencing 1st April 1999 and ending 30 March 2001, with a three year option of renewal, at a monthly rental of $2,200.00, 5% increase on first 1st April 2000, market review on exercise of option, and 5% annual increases thereafter, contribution to outgoing, 50% of water and sewerage rates, all other terms as per the Law Society Lease; 2. The Applicant is to, within 28 days of this date, serve on Respondents a notice in writing either exercising the option of renewal or stating that she will vacate no later than 30th March 2001; 3. If Applicant exercises option, Lease document, in compliance with these orders, signed by Respondent, to be submitted to Applicant within 21 days of rent being agreed or established by valuation Applicant to sign and return it. Respondent within 28 days of her receipt of it, together with payment of agreed costs of drawing Lease ($800.00) and stamp duty; 4. Applicant and Respondent, within 28 days of today to jointly apply to the South Sydney Council, in writing, seeking review of fire compliance order under Section 121B-6, dated 23 December 1999, seeking further formal inspection to establish Council's requirement in view of current use of the premises as art gallery, coffee shop, and private residence; 5. Respondent not to proceed with building work which interferes in any way with the commercial or residential use of 249 Riley Street.' 3 The orders derived from various findings of fact: see further para [5] below. The most significant of these from the viewpoint of the lessee was that the present relationship between the parties was governed by a new lease created commencing 1 February 2000 constituted by an offer made by the respondent through his solicitor by facsimile 9 December 1999 which was accepted by the appellant through her solicitor 8 January 2000. Appeal 4 On 2 March 2001 the applicant in the original matter, Ms Botts, lodged an appeal. 5 The findings of fact relevant to this appeal are as follows:-