Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130

CITATION: Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130

DIVISION: Retail Leases Division

APPLICANT PARTIES: Spuds Surf Chatswood Pty Limited RESPONDENT P T Limited

FILE NUMBER: 065171

HEARING DATES: 21 May 2007

SUBMISSIONS CLOSED: 21 May 2007

DATE OF DECISION: 20 June 2007

BEFORE: Molloy GB - Judicial Member

CATCHWORDS: Costs - Interim order

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994

Commercial Union Assurance Co of Australia Ltd v. Ferrcom Pty Limited (1991) 22 NSWLR 389 at 418-419) Commissioner of Taxation v. Murry ([1998] 193 CLR 605 at 632) Fiduciary Ltd v Morningstar Research Pty Limited [2002] NSWSC432 Horrobin v. ANZ Banking Group Limited [BC9702258] CASES CITED: Jones v. Dunkeld (1959) 101 CLR 298. Nam v Commonwealth Funds Management Limited [2002] NSWADT 80 Nam v Commonwealth Funds Management Limited (No2) [2002] NSWADT 120 Tapoohi v. Lewenberg (2)[2003] VSC 410 Townsend v. Chief Executive, State Rail Authority [1999] NSWADT 56

APPLICANT B Zipser, counsel REPRESENTATION: RESPONDENT R Angyal, SC

ORDERS: 1.The Respondent is restrained from taking any steps to evict the Applicant from the premises Shops 415, 416 and 417 Westfield Shoppingtown Chatswood, pending further order.; 2.The grant of relief in Order 1 is on the following terms:; a) Applicant pay to the Respondent on account of rent $25,000.00 per month, the first payment to be made for the month commencing 1 June 2007, such payment to be made within seven days of the date of this decision, thereafter monthly for the subsequent rent periods commencing 1 July 2007, such subsequent payments to be made within 7 days of the first day each month.; b) Applicant to provide security in the sum of $28,049.88, being the balance of regular monthly rental payments, from and including the payment due 1 June 2007 until the date of any final decision on the Application. ; c) Such security to be the subject of agreement between the parties and, absent agreement, to be determined by the Tribunal.; 3. Proceedings listed for further directions at 9 am on 26 July 2007 for the purposes of making any consent orders with regard to the granting of such security; alternatively, for fixing a date for hearing on the type of security that should be ordered to be provided by the Applicant.; 4. Costs order made 12 April 2007 be varied so as to read: ; "The Applicant pay the Respondent's costs thrown away in respect of the adjournment application and in respect to the vacation of the hearing dates, such costs to be assessed and payable forthwith."; 5. Should the Applicant seek a variation of order 4 above by deleting the words "and payable forthwith" by words in or to the effect "such costs to be satisfied by the Applicant providing security", the Applicant is granted leave to re-list the proceedings for that purpose at a convenient time after assessment of the Respondent's costs.; 6. The Application be listed for further Directions on 12 July 2007 at 9.30am.; 7. Leave granted to the Applicant to amend its Application as it maybe advised, any such Amended Application to be filed and served no later than 2 July 2007. ; 8. The applicant to file and serve all documents and affidavits upon which it seeks to rely no later than 9 July 2007.; 9. Liberty to apply.