Bischof & Anor v Werncog Pty Ltd [2004] NSWADT 241

CITATION: Bischof & Anor v Werncog Pty Ltd [2004] NSWADT 241 DIVISION: Retail Leases Division APPLICANT PARTIES: Helen Bischof & Ross Melrose RESPONDENT Werncog Pty Ltd FILE NUMBER: 035019 HEARING DATES: 31/08/2004, 1.09/2004-3/09/2004 SUBMISSIONS CLOSED: 09/07/2004 DATE OF DECISION: 10/26/2004

BEFORE: Chesterman M - ADCJ (Deputy President); Griffiths G - Non Judicial Member; Fagg N - Non Judicial Member APPLICATION: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Claim for relief from payment of money - Unconscionability MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 B P Refinery (Westernport) Pty Ltd v Hastings Shire Council (1994) 180 CLR 266 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Four Seasons International Agriculture Pty Ltd v Dominic Iacullo & Anor [2002] NSWADT 91 Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd [2004] NSWCA 85 CASES CITED: Hurley v McDonalds Australia Ltd (2000) ATPR 41-471 Khao Thai Pty Ltd v Coles Myer Properties Holdings Pty Ltd [2001] NSWADT 83 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 Prasad & Anor v Fairfield City Council [2001] NSWADT 28 Skiwing Pty Ltd v Trust Co of Australia Ltd (No 3) [2004] NSWADT 94 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 386 APPLICANT REPRESENTATION: F Lever SC, barrister RESPONDENT I Pike, barrister ORDERS: 1. Subject to the outcome of any application made pursuant to Order 2, the Respondent is to pay to the Applicants the sum of $6,694.31, made up of $3,767.96 as principal and $2,926.35 as interest. Payment is to be made on the expiry of 28 days from the date of this decision or, if any such application is made, on the determination of the application.; 2. The Respondent has 28 days within which to file, with submissions, any application that it may wish to make under s 72A(5) of the Retail Leases Act 1994 for a reduction of the amount of interest awarded. ; 3. Both parties have 28 days to file submissions on costs. ; 4. Any submissions in reply on any of these matters must be filed within a further 28 days. ; 5. Unless the Tribunal determines otherwise, any application made under Order 2 or Order 3 will be resolved 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.