Nam & anor -v- Commonwealth Funds Management Limited & anor (No. 2) [2002] NSWADT 120

CITATION: Nam & anor -v- Commonwealth Funds Management Limited & anor (No. 2) [2002] NSWADT 120 DIVISION: Retail Leases Division APPLICANTS Ki Sung Nam and Moon Hwi Nam (trading as C'est La Vie) PARTIES: FIRST RESPONDENT Commonwealth Funds Management Limited SECOND RESPONDENT Mirvac Funds Limited FILE NUMBER: 025043 HEARING DATES: 19/06/2002 SUBMISSIONS CLOSED: 06/19/2002 DATE OF DECISION: 07/11/2002

BEFORE: O'Connor K - DCJ (President); Griffiths G - Member APPLICATION: Interim order MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Retail Leases Act 1994 Retail Leases Amendment Act 1998 Nam & anor -v- Commonwealth Funds Management Limited & anor [2002] NSWADT 80 CASES CITED: Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 (QCA) Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 APPLICANTS REPRESENTATION: A I Tonking, barrister RESPONDENTS C F Hodgson, barrister ORDERS: That the respondents, and each of them, by themselves, their respective servants and agents until 1 December 2002 or further order:; 1. Refrain from demolition or construction work within the area on Level 5 of the Food Court in the Metcentre previously occupied by common seating area and now hoarded up at any time between 7 am and 3 pm on weekdays;; 2. Immediately realign and maintain until no longer required the hoarding constructed around the former common seating area on Level 5 so that it does not intrude into the common area and so that the line of sight from the main circular area of the Food Court is restored to the position before the hoarding was erected on or about 1 June 2002.; 3. Conduct all works on Level 5 in a manner which complies with section 34(1) of the Retail Leases Act 1994, in particular paragraphs (a) (no inhibition of access of the applicants to their shop in any substantial manner), (b) (no inhibition or alteration, to a substantial extent, of the flow of customers to the applicants' shop), (c) (no unreasonable action that causes significant disruption, or has a significant adverse effect on, trading of the applicants).