Kennard -v- Shanhaven Pty Limited [2002] NSWADT 243

CITATION: Kennard -v- Shanhaven Pty Limited [2002] NSWADT 243 DIVISION: Retail Leases Division 1. APPLICANT Joseph Rohan Kennard trading as Tabanacal 1. RESPONDENT PARTIES: Ed Silk Real Estate 2. APPLICANT Shanhaven Pty Limited 2. RESPONDENT Joseph Rohan Kennard FILE NUMBER: 1. 015098; 2. 015127 HEARING DATES: 15/08/2002 - 16/08/2002 SUBMISSIONS CLOSED: 08/16/2002 DATE OF DECISION: 11/21/2002

BEFORE: Fox R - Judicial Member APPLICATION: Claim for payment of money - Claim for relief against forfeiture - Claim for surrender of possession of premises MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: Prasad and Walker –v- Fairfield City Council, [2000] NSWADT 164 1. APPLICANT In person 2. APPLICANT J Priestly, barrister REPRESENTATION: 1. RESPONDENT J Priestly, barrister 2. RESPONDENT In person ORDERS: 1a. Lessee is to pay $945.00 per week (being rent including GST $831.25, outgoings including GST $113.75) before 4:45pm Friday 16 August 2002, and on each and every Friday thereafter. The Lease terminates immediately without further order if any payment is missed; 1b. The December 2002 CPI adjustment is to apply, and the weekly rent is to be adjusted accordingly; 2. The Lease is to terminate on 1 April 2003, unless before that date the Lessee has entered into and completed a valid, bona fide contract for sale of the benefit of the Lease registered number 6847710Q; The Lessor is to comply with Lessor's obligations under part 5 of the Retail Leases Act with respect to assignment of lease; 3. The Lessee's claim for compensation, damages, and extension of lease is dismissed; 4. The Lessor shall cause an audit of all outgoings incurred from the date of commencement of the Lease, and is to deliver copy to the Lessee by 16 September 2002. Section 29 is to be complied with; 5. The Lessee is to pay the Lessor the sum of $15,000.00 on assignment of the Lease; 6. The Lessee is to pay Ed Silk Real Estate costs in the sum of $1,500.00 within eight weeks of the date of the hearing (11 October 2002); 7. Lessee to install and keep efficiently and properly operating a calibrated noise monitor with a visual sound level indicator installed in a prominent position to warn of impending breach of the standard noise conditions (Section 17AA) referred to in the report of Ambiance Audio Services dated 4 September 2001. This monitor is to be connected to the power circuit of the sound amplifiers in use in the premises so that the power to such amplifiers is cut if the sound levels are not reduced after six seconds; 8. Liberty to restore on five days notice.