CITATION: Makris v Lafiatis [2007] NSWADT 143 DIVISION: Retail Leases Division APPLICANT Zois Makris PARTIES: RESPONDENT George Lafiatis Vicki Lafiatis FILE NUMBER: 075035 HEARING DATES: 24 May 2007 SUBMISSIONS CLOSED: 24 May 2007 EXTEMPORE DECISION DATE: 24 May 2007 DATE OF DECISION: 28 June 2007 BEFORE: Rickards K - Judicial Member CATCHWORDS: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 APPLICANT S Konstantinidis, solicitor REPRESENTATION: RESPONDENT No appearance ORDERS: 1. I declare that a Retail Shop Lease exists between George and Vicki Lafiatis as Lessor and Zois Makris as Lessee in respect of the premises known as 320 Bronte Road, Waverley and being the whole of the land comprised in Certificate of Title Folio Identifier 4/442494, and that the terms of such Retail Shop Lease are in accordance with the Lease marked 'A' and attached to the Application; 2. I order the Respondent to provide to the Applicant a properly executed and registered lease in accordance with Order 1 to the Applicant within 14 days; 3. I order the Applicant to file and serve within 28 days, any further draft Orders which he seeks to be made by the Tribunal in the event of default of Order 2; 4. I order the law firm Neil Scott Lawyers to produce to the Tribunal within 14 days all documents relating to the premises at 320 Bronte Road. Waverley relating to the lease agreement between the Applicant and the Respondent including lease documents, disclosures and stamp duty receipts but not including any confidential communications; 5. In default of compliance by the Respondent with Order 2, the Tribunal may make such further orders to give effect to Order 2 or to effect registration of a lease in accordance with these Orders, without a further hearing, as it considers necessary; 6. I order that the Applicant may at his own option pay future rent and outgoings by forwarding payment by ordinary post to the Respondent at 1 Scott Circle, Salamander Bay NSW, or to such agent as from time to time may be nominated in writing by the Respondent; 7. I declare that the Applicant has, as at the date of the making of these orders, complied with all of the Lessee's obligations pursuant to the Lease agreement in respect of payment of rent and outgoings; 8. I order that the Respondent pay to the Applicant the sum of $29,750 being rental income received by the Respondent in respect of the premises in breach of the lease agreement; 9. I order that the Respondent provide vacant possession of the entire premises to the Applicant forthwith; 10.In default of compliance with Order 9, I declare that the Applicant is entitled the payment from the Respondent or credit against rent payable to the Respondent pursuant to and during the currency of the lease agreement, of a sum equivalent to all rent receivable by the Respondent from any other person occupying the premises; 11. By consent of the Applicant, I order that the Application be amended by deleting paragraphs 6.3 and 7; 12. The Applicant must file and serve any submissions as to costs within 42 days, failing which there will be no order as to costs. REASONS FOR DECISION 1 The Application in these proceedings is made in respect of premises located at and known as 320 Bronte Road, Bronte, New South Wales. 2 Hearing of the Application proceeded on 24 May 2007 in the absence of the Respondents, Mr & Mrs Lafiatis, who are the owners and the Lessors of the premises. The Applicant attended at the hearing and was legally represented. 3 From my perusal of the Tribunal file, I am satisfied that the Respondents were properly and sufficiently notified prior to the hearing date of the orders sought by the Applicant, of the requirement to file and serve any evidence in reply to the Application, and of the fact that the Application was listed for hearing on 24 May 2007. 4 I have accepted as true and accurate the information set out on behalf of the Applicant in annexure B to the Application and in his Affidavit sworn on 24 May 2007 and tendered upon his behalf at the hearing. During the course of the hearing, I also asked the Applicant certain questions about the premises and about the tenants living upstairs in the premises without him formally having been called as a witness, and I also accept that the information given to me by the Applicant is true and accurate. 5 Having considered the material and the admitted evidence, I am satisfied as to the following matters:- a On or about 22 September 2005 the Applicant and the Respondents agreed that the Applicant would lease the entire premises as described in the Lease document annexed to the Application and marked "A", and that this would be upon the terms as set out in that Lease document; b The premises primarily consist of a takeaway food shop at street level with a residence above. The predominant actual use of the premises is for the sale of takeaway food, which is also the use described in the Lease document prepared by the Respondents and executed by the Applicant. Premises which are used as a takeaway food shop are included within Schedule 1 of the Retail Leases Act, 1994 ("the Act") and accordingly are a "retail shop" as defined in Section 3 of the Act. c The Applicant entered into possession of the premises on or about 22 September 2005 and thereafter expended money in improving the premises, and also paid the security deposit and rent to the Respondents; pursuant to Section 8 of the Act, the Lease commenced as and from that date. d The Respondents sought to change the terms of the lease agreement some months later in February 2006 which the Applicant did not agree to. e On or about 1 October 2005 the Respondents gave possession of the upstairs portion of the premises to other parties without the prior knowledge or consent of the Applicant, and the Respondents have thereafter received rent from those other parties in the sum of $350.00 per week up to the present time. f On 11 October 2005 the Applicant caused the executed Lease to be forwarded to the solicitors then representing the Respondents and paid all necessary expenses associated with registration of the Lease. Despite a number of requests, the Respondents have since failed to return an executed and registered copy of the Lease to the Applicant; g The Respondents have also interfered with the Applicant's use and possession of the premises by disconnecting the hot water supply, failing to pay water rates, changing the locks to the premises and threatening to evict the Applicant; h The Applicant initially paid rent to a legal firm called Neil Scott Lawyers who were then acting on behalf of the Respondents, but those solicitors subsequently indicated to the Applicant's solicitors that they were not authorised to accept rent on behalf of the Respondents. These solicitors also confirmed on 31 January 2006 that the Lease had been stamped but that the Respondents had refused to execute the Lease. 6 In accordance with the terms of the Lease agreement between the parties, the Applicant is entitled to the benefit of possession of the entirety of the subject premises, has paid all due rent, and has met all of his other obligations as Lessee. 7 Accordingly, I have made the following orders as set out below. Orders 1. I declare that a Retail Shop Lease exists between George and Vicki Lafiatis as Lessor and Zois Makris as Lessee in respect of the premises known as 320 Bronte Road, Waverley and being the whole of the land comprised in Certificate of Title Folio Identifier 4/442494, and that the terms of such Retail Shop Lease are in accordance with the Lease marked 'A' and attached to the Application. 2. I order the Respondent to provide to the Applicant a properly executed and registered lease in accordance with Order 1 to the Applicant within 14 days 3. I order the Applicant to file and serve within 28 days, any further draft Orders which he seeks to be made by the Tribunal in the event of default of Order 2. 4. I order the law firm Neil Scott Lawyers to produce to the Tribunal within 14 days all documents relating to the premises at 320 Bronte Road. Waverley relating to the lease agreement between the Applicant and the Respondent including lease documents, disclosures and stamp duty receipts but not including any confidential communications 5. In default of compliance by the Respondent with Order 2, the Tribunal may make such further orders to give effect to Order 2 or to effect registration of a lease in accordance with these Orders, without a further hearing, as it considers necessary 6. I order that the Applicant may at his own option pay future rent and outgoings by forwarding payment by ordinary post to the Respondent at 1 Scott Circle, Salamander Bay NSW, or to such agent as from time to time may be nominated in writing by the Respondent 7. I declare that the Applicant has, as at the date of the making of these orders, complied with all of the Lessee's obligations pursuant to the Lease agreement in respect of payment of rent and outgoings 8. I order that the Respondent pay to the Applicant the sum of $29,750 being rental income received by the Respondent in respect of the premises in breach of the lease agreement 9. I order that the Respondent provide vacant possession of the entire premises to the Applicant forthwith 10. In default of compliance with Order 9, I declare that the Applicant is entitled the payment from the Respondent or credit against rent payable to the Respondent pursuant to and during the currency of the lease agreement, of a sum equivalent to all rent receivable by the Respondent from any other person occupying the premises. 11. By consent of the Applicant, I order that the Application be amended by deleting paragraphs 6.3 and 7. 12. The Applicant must file and serve any submissions as to costs within 42 days, failing which there will be no order as to costs. 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.