Khao Thai Pty Ltd v Coles Myer Properties Holdings Limited (No.2) [2001] NSWADT 186

CITATION: Khao Thai Pty Ltd v Coles Myer Properties Holdings Limited (No.2) [2001] NSWADT 186 DIVISION: Retail Leases Division APPLICANT PARTIES: Khao Thai Pty Ltd RESPONDENT Coles Myer Properties Holdings Ltd FILE NUMBER: 005024 HEARING DATES: 25/09/2001, 26/09/2001 SUBMISSIONS CLOSED: 09/26/2001 DATE OF DECISION: 11/12/2001

BEFORE: Donald B - Judicial Member APPLICATION: Costs - Damages MATTER FOR DECISION: Damages; set off and costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705 CASES CITED: M. Lambert Pty Ltd v Papagatos Pty Ltd (19990-1991) 5ACSR 468 Re Partnership Pacific Securities Ltd [1994] 1QdR 410 British Anzani (Felixstowe) Ltd v International Management Ltd [1980] 1 QB 137 Alessa Pty Ltd v Total and Universal Pty Ltd [2001] NSWADT 150 APPLICANT REPRESENTATION: C Leggat, barrister RESPONDENT J Simpkins SC, barrister ORDERS: 1 Respondent to compensate Applicant in the sum of $45,310 for breach of its contractual obligations for the period November 1999 to May 2001 that it will not permit another operator of Thai and Malaysian food in the Sydney Central Plaza Food Court ; 2 Applicant may set off the amount of damages in its favour against its obligation to pay the arrears of Food Court Operating Costs, that being the sum of $47,391; 3 Applicant to pay to Respondent the balance following set off being the sum of $2,047.26 plus interest; 4 Respondent to pay the costs incurred by Applicant in retaining its financial consultant Mr Katehos to provide his report in response to the RGL surveillance and report on behalf of Respondent and to give evidence in relation thereto.