CITATION: Carmen Markey v LJ Hooker [2003] NSWADT 253 DIVISION: Retail Leases Division APPLICANT PARTIES: Carmen Lorraine Markey RESPONDENT LJ Hooker Alstonville FILE NUMBER: 035111 HEARING DATES: 16/10/03 SUBMISSIONS CLOSED: 10/16/2003 DATE OF DECISION: 11/25/2003 BEFORE: Chesterman M - ADCJ (Deputy President); Fagg N - Member; Griffiths G - Member APPLICATION: Damages - Unconscionability MATTER FOR DECISION: Urgent interim order LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT T Stephenson, solicitor ORDERS: 1 Order prohibiting 76 Main Pty Ltd or Richard Campbell from granting lease over premises at 1a 76 Main Street Alstonville to anyone other than the applicant for 21 days; 2 Applicant to have liberty to apply for extension of order; 3 Parties to seek mediation at Retail Tenancy Unit as soon as possible or seek to resolve dispute by other means; 4 Matter listed for directions on 13 November 2003 at 9.30 a.m. 1 In this matter, the Applicant, Ms Carmen Markey, filed an application on 26 September 2003. In it, she alleged that Mr Richard Campbell, whom she named as a Respondent, had agreed to lease premises at 1a/76 Main Street, Alstonville, ('the premises') to her for the purposes of a coffee shop, but had subsequently 'pulled out of' this agreement. She also alleged that, in reliance on this agreement, she had incurred expenses of $10,600 for 'set-up costs'. She indicated that her claim was an unconscionable conduct claim. 2 Annexed to her application was a letter bearing the letterhead of L J Hooker Alstonville, which she also named as a Respondent. The relationship of Mr Campbell to 'L J Hooker Alstonville' remains unclear. The letter was dated 28 July 2003, addressed to 'Carmen Marke' (sic) and headed 'Re: Lease Details for (portion of ex-The Barn) Shop 1a/76 Main Street, Alstonville' Amongst other things, it recorded the following matters: the landlord's name as '76 Main Pty Ltd'; a lease period of two years commencing on 1 September 2003; a further option period of one year; a permitted use as a 'coffee shop'; and, in two separate places, two amounts (respectively $725.53 and $724.53) to be paid monthly as rent. It set out, in its text and in an annexure, some terms and conditions relating (amongst other things) to alterations to be carried out by the landlord and approval by the landlord of any fit-out being installed by the tenant. It concluded with the words 'Carmen, please read and confirm that the details are correct' and was signed 'Richard Campbell (Licensee/Principal)'. 3 On the same day, 26 September 2003, the Applicant also filed an application for an urgent interim order prohibiting the Respondent from granting a lease of the premises to another party, and requiring the Respondent to 'honour agreement or pay my cost (sic) plus damages'. 4 The hearing of this second application on 16 October 2003 was conducted by teleconference. The Applicant, the Respondent's solicitor, Deputy President Chesterman and the two other Tribunal members (Mr Fagg and Mr Griffiths) constituting the Panel were at different venues. 5 At this hearing, the Applicant alleged that she had lodged a development application in respect of the premises with Ballina Council and that Mr Campbell had consented in the capacity of owner. On the same day as the hearing, she faxed to the Tribunal what appeared to be the cover sheet of this application. It showed what appeared to be Mr Campbell's signature at the foot of a section headed 'owner's consent', designating him as the director/secretary of 76 Main Pty Ltd. The date of reception by the Council was shown as 14 August 2003. It was subsequently approved. 6 In outline, the Applicant's oral evidence was to the effect that she and Mr Campbell had agreed on a lease of the premises and had discussed it numerous times. She had not written in response to the letter of 28 July 2003, but had confirmed its terms with him orally. She had incurred fit-out costs and had made the development application with his approval, but subsequently he told her that he had been offered a higher rent by another person and had decided to accept this offer. At the time of the hearing, however, the premises were unoccupied and there was a sign saying 'for lease' in the window. If another tenant were permitted to take possession, she would have incurred her fit-out costs without deriving any benefit from them and would have no realistic expectation of obtaining the proposed lease and commencing her business as a coffee shop. 7 Mr Campbell did not give evidence. His solicitor, Mr Stephenson, said that he was instructed that (a) the owner of the premises was 76 Main Pty Ltd, of which Mr Campbell was a director; (b) this had been disclosed to the Applicant during negotiations; (c) there was no contact between Mr Campbell and the Applicant after the letter of 28 July 2003 and in fact she had cancelled two appointments with him; (d) he did not remember signing the development application; and (e) the approval of Ballina Council did not enhance the opportunity open to the proposed new tenant because a different line of business was envisaged. 8 Having heard the evidence and submissions on 16 October 2003, the Tribunal members conferred among themselves by telephone and decided that an interim order should be made. Deputy President Chesterman then conveyed the terms of the order, which are set out at the end of these reasons, by telephone to the parties. On the same day, the Registry sent a letter to them confirming these terms. 9 On 30 October 2003, Mr Campbell's solicitors sent a letter to the Registry requesting written reasons for this decision under s 89 of the Administrative Decisions Tribunal Act 1997. This letter prompted the preparation of these reasons. 10 The basis on which the Tribunal decided that its interim order was appropriate in the circumstances is as follows. 11 The Applicant had brought forward prima facie evidence, both written and oral, suggesting that agreement had been reached between the parties for a lease of the premises, that Mr Campbell had consented to her lodgement of a development application and that he was or should have been aware that she was incurring fit-out costs. Her evidence on these matters had not been materially contradicted to any significant degree. There was at least a reasonable prospect that she might succeed in her application for principal relief. 12 The Tribunal weighed the hardship that she could be expected to suffer if no interim relief were granted against the hardship likely to be inflicted on the Respondent by an order temporarily preventing the grant of a lease to another party. It concluded that an order of this nature was warranted, and that the order should operate at least until the parties had had an opportunity to submit their dispute to mediation, as required by s 68 of the Retail Leases Act 1994. 13 The Tribunal's interim order, communicated to the parties by telephone and in writing on 16 October 2003, was in the following terms:- 1. Order prohibiting 76 Main Pty Ltd or Richard Campbell from granting lease over premises at 1a 76 Main St Alstonville to anyone other than the applicant for 21 days. 2. Applicant to have liberty to apply for extension of order. 3. Parties to seek mediation at Retail Tenancy Unit as soon as possible or seek to resolve dispute by other means. 4. Matter listed for directions on 13 November 2003 at 9.30 a.m. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.