Skiwing Pty Ltd v Trust Company of Australia Ltd [2005] NSWADTAP 10

Appeal Panel - Internal

CITATION: Skiwing Pty Ltd v Trust Company of Australia Ltd [2005] NSWADTAP 10 APPELLANT PARTIES: Skiwing Pty Ltd RESPONDENT Trust Company of Australia Ltd FILE NUMBER: 049035 HEARING DATES: 30 November 2004 SUBMISSIONS CLOSED: 12/22/2004 DATE OF DECISION: 03/11/2005

Skiwing Pty Ltd vTrust Company of Australia Ltd [2004] NSWADT 169 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Molloy GB - Judicial Member; Weule B - Non Judicial Member CATCHWORDS: exercise of discretion - procedural fairness - unreasonableness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 045027, 045068 DATE OF DECISION UNDER APPEAL: 08/17/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9 Finchbourne Ltd v Rodrigues [1976] 3 All ER 581 French v Sydney Turf Club Ltd (No 2) [2003] NSWADTAP 54 Gizah Pty Ltd v AXA Trustees Ltd [2001] NSWADT 116 House v King (1936) 55 CLR 499IOOF CASES CITED: Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470 Napatarra Pty Ltd v Perpetual Trustee Co Ltd [1999] NSWSC 750 Randi Wixs Pty Limited -v- Pokana Pty Limited (No. 2) [2003] NSWADT 4 Skiwing Pty Ltd v Trust Company of Australia Limited [2004] NSWADT 169 Skiwing Pty Ltd t/as Café Tiffanys v Trust Company of Australia Limited [2002] NSWADT 278 Z v University of A, Dr D and B (No 6) [2003] NSWADT 260 APPELLANT Z Stojanoski, agent REPRESENTATION: RESPONDENT P M Briscoe QC M Allars, barrister ORDERS: 1. The appeal is allowed in part 2. Order 1 of the Tribunal in Application 045027, in so far as it dismissed the Appellant's claim to a refund, is set aside 3. Order 2 in Application 045068, requiring the Appellant to pay unpaid outgoings and promotional levy together with interest, is set aside 4. The extent of any liability of the Appellant to contribute to outgoings under the Lease between the parties and the amount of any payment to be made by either party to the other party is to be reconsidered by the Tribunal 5. The following questions relating to the Tribunal's reconsideration of these matters should be determined by the Appeal Panel at a hearing to be arranged by the Registry:-(a) How the Tribunal should be constituted.(b) Under what conditions the parties should be permitted to adduce further evidence.(c) Any other procedural issues requiring determination 6. The costs of this appeal are reserved.