De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63

CITATION: De Luca & Anor v Scuccimarra & Anor [2007] NSWADT 63

DIVISION: Retail Leases Division

APPLICANTS Luigi De Luca PARTIES: Gavina de Luca RESPONDENTS Francesco Scuccimarra Rosa Scuccimarra

FILE NUMBER: 055162

HEARING DATES: 6 November 2006 15 December 2006

SUBMISSIONS CLOSED: 15 December 2006

DATE OF DECISION: 22 March 2007

BEFORE: Chesterman M - ADCJ (Deputy President); Fairweather R - (Advisory) Non Judicial Member ; Tyler T - Non Judicial Member

CATCHWORDS: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for the doing of work or provision of services - Damages - Interest - Unconscionability

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Real Property Act 1900

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 CASES CITED: G & M Dawson Pty Ltd v Cripps & Ors (No 3) [2005] NSWADTAP 24 G & M Dawson Pty Ltd v Cripps & Ors [2004] NSWADTAP 38Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145Mattana Coiffure Pty Ltd v Sotiropoulos (No 2) [2004] NSWADT 80 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

APPLICANTS S Taylor, barrister REPRESENTATION: RESPONDENTS R Czinner, solicitor

ORDERS: 1. The Respondents are jointly and severally liable to the Applicants in the amount of $60,645.17, comprising a principal sum of $52,146.50 and interest totalling $8,499.17; 2. The Respondents are to arrange at their expense for the tiles on the floor of Suite C, 106 Norton Street, Leichhardt to be replaced, within six weeks of the date of this decision, by one or more appropriately qualified tradespeople, in a manner that will render the premises reasonably fit for the gelataria business currently conducted in those premises by the Applicants; 3. Both parties have liberty to apply for variation of Order 2, but only on the ground that compliance with its terms is not practicable and the parties cannot reach agreement on any appropriate variation. Any such application must be filed and served, with supporting submissions, within 14 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 7 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997; 4. It is declared that under the lease between the parties executed on 31 December 2004, the monthly rent of $4,333.33 required to be paid by the Applicants to the Respondents is inclusive of Goods and Services Tax payable at the rate of 10%; 5. Any application for the costs of these proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers'.