Atma Investments Pty Ltd -v- The Astor [2003] NSWADT 102

Set aside by Appeal : Set aside by Appeal on 6/11/2003

CITATION: Atma Investments Pty Ltd -v- The Astor [2003] NSWADT 102 DIVISION: Retail Leases Division APPLICANT PARTIES: Atma Investments Pty Ltd RESPONDENT The Astor FILE NUMBER: 015106 HEARING DATES: 8/3/02, 21/3/02, 29/5/02, 3/6/02, 23/8/02 SUBMISSIONS CLOSED: 08/23/2002 DATE OF DECISION: 05/16/2003

BEFORE: Hole M - Judicial Member APPLICATION: Claim for assignment of rights under a lease/ declaration lessor not entitled to withhold consent to an assignment of rights - Claim for declaration of rights, obligations and liabilities under a lease MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: A Fernon, Barrister RESPONDENT G Burton, Barrister ORDERS: 1.The Respondent to refund the balance of the security bond after deduction of the amount of any unpaid rent (if any) to the Applicant within 28 days of the date hereof.; 2. All material supplied on subpoena be returned.

REASONS FOR DECISION 1 The Applicant (the Lessee) has applied for certain orders in respect of a lease registered Bk 4232 No 204 dated 3 July 1998 (the Lease) between it and the Respondent (the Lessor) of premises being "The Astor Coffee Lounge, Ground Floor" 123 Macquarie Street, Sydney (the premises). The Lease is for a period of 4 years, with an option to renew for 4 years, commencing on 19 August 1998 and terminating on 18 August 2002. 2 The Lease was considered by Mr B Donald, Judicial Member, who made an order dated 16.11.01 that:- 'Declare that the respondent is deemed to have consented to the proposed assignment of the Lease.' 3 The Lease is a lease to which the provisions of the Retail Leases Act 1994 applies being of a "Coffee Shop". 4 The Lease provides that the permitted use is "Coffee Shop". 5 The Tribunal has jurisdiction to consider the amended application filed on 21 November 2001 wherein the following Final Orders are sought: "FINAL ORDERS Pursuant S.72(1) of the Retail Leases Act 1994, that the Applicant, Atma Investments Pty Limited, be restored to the position the Applicant would have been in if the sale of the business, and the consent to the assignment of lease, registered in the Land Titles Office Book 4232 No. 204, to Mr. Cowdrill, had not been unreasonably withheld by the Respondent, The Astor Pty Limited as follows: a) The Respondent to pay damages to the Applicant in the sum of $197,103 forthwith; and b) The Applicant surrender the said license agreement and lease to the Respondent pursuant S.72(1)(c)(ii); and that, c) The Respondent release the Applicant from any claims for any further moneys payable pursuant to the said lease S.72(1)(a) d) That the Respondent pay the applicants legal costs of these proceedings pursuant S 77A in the sum of $5,015.00 or in the alternative to a, b and c. 1) That pursuant S.71(1)(a) of the Retail Leases Act 1994, the Respondent, The Astor Pty Limited, pay damages to the Applicant Atma Investments Pty Limited in such amount as is considered reasonable by the Tribunal. 2) That pursuant to S. 77A the Respondent pay the legal costs of the Applicant in respect of the Application. 3) That the Respondent pay interest pursuant to S.72A. 4) Such further or other order pursuant to S.72(3) as this Honourable Tribunal sees fit." (sic) 6 The written submissions made on behalf of the Applicant refer to the claim as being:- 1. The Applicant seeks damages for a breach of clause 6.5 of the Lease. 2. The damages sought are: (a) The loss of sale to David Cowdrill $165,000 (b) The continuing loss of business (Sept – Dec 01) $ 6,206 (c) Rent paid (January – April 02 @ $2498.50) $ 9,994 (d) Security bond (per item 8 of the lease and remains unpaid) $ 11,750