Watermark Restaurant Pty Ltd v Hunters Beach Investments Pty Ltd [2004] NSWADT 97

CITATION: Watermark Restaurant Pty Ltd v Hunters Beach Investments Pty Ltd [2004] NSWADT 97 DIVISION: Retail Leases Division APPLICANT PARTIES: Watermark Restaurant Pty Ltd RESPONDENT Hunters Beach Investments Pty Ltd FILE NUMBER: 035083 HEARING DATES: 21/11/2003 SUBMISSIONS CLOSED: 11/28/2003 DATE OF DECISION: 05/24/2004

BEFORE: Hole M - Judicial Member APPLICATION: 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 Currie v Glen [1935-36] 54 CLR 453 CASES CITED: FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 Huddart Parker Ltd v Ship "Mill Hill" [1950] 81 CLR 502 at 508-9 Sportsvision Australia Pty Ltd v Tallglen Pty Ltd [1998] 44 NSWLR 103 at 114-6 APPLICANT REPRESENTATION: M Southwick, barrister RESPONDENT G Parker ORDERS: 1. The Counter Signatory cannot refuse to sign cheques in respect of the 3% fee referred to in clause 12.7A provided that the amount is no more than 3% of the Gross Income payable each to Wilson and Leung; 2. The turnover remuneration referred to in clause 12.7A does not fall within the categories referred to in clause 12.4A(4)(a)-(d); 3. 3% of Gross Income is a consulting fee not tied to Wilson and Leung being present. The only requirement which is related to presence is where a replacement is required – which it tied to equal standing and ability; 4. Wilson and Leung to each receive a consulting fee of 3% of Gross Income. The replacement(s) to be paid from this amount. This is an accounting process which may be made either directly by the company or by Wilson and Leung. Wilson and Leung may direct the company to deduct the replacement(s) pay from the 3%, pay the replacement(s) and account to Wilson and Leung for the balance.