Hondroyiannis & Anor v Adwell Holdings Pty Ltd [2007] NSWADT 252

CITATION: Hondroyiannis & Anor v Adwell Holdings Pty Ltd [2007] NSWADT 252

DIVISION: Retail Leases Division

APPLICANT PARTIES: Dimitrios Hondroyiannis and Eugenia Hondroyiannis RESPONDENT Adwell Holdings Pty Ltd

FILE NUMBER: 065137

HEARING DATES: 18 and 19 June 2007

SUBMISSIONS CLOSED: 13 September 2007

DATE OF DECISION: 18 October 2007

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

CATCHWORDS: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Unconscionability

MATTER FOR DECISION: Principal matter

Australian Road Rules LEGISLATION CITED : Conveyancing Act 1919 Retail Leases Act 1994

CASES CITED: Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557

APPLICANT R Quickenden, barrister REPRESENTATION: RESPONDENT B Sharpe, barrister

ORDERS: 1. Declare that the Lease between the parties dated 3 March 2003 was not validly determined by the Respondent's purported Notice of Determination dated 21 August 2006.; 2. Declare that during the period of currency of this Lease (including any period covered by the exercise of an option to renew) the Applicants are entitled under the Lease to load and unload stock for the purpose of the business carried on in the leased premises at a site adjacent to the rear door of the premises (on the eastern side), so long as their mode of doing so remains substantially the same as at present. ; 3. Order that during this period the Respondent is not to interfere directly or indirectly with the loading and unloading of stock by the Applicants at this location, so long as their mode of doing so remains substantially the same as at present.; 4. Order that during his period the Respondent is not to oppose any application by the Applicants to the Gosford City Council for a loading zone to facilitate the conduct of these loading and unloading operations according to the mode currently utilised.; 5. Discharge the Tribunal's order made on 1 September 2006 restraining the Respondent from interfering with the Applicants' possession and enjoyment of their interest under the Lease.; 6. Order that the matter of the costs of these proceedings is to be resolved as follows:-; (a) Any application for costs must be filed and served, with supporting submissions, within 28 days of the date of this decision. ; (b) The opposing party must file and serve submissions in reply within a further 28 days. ; (c) 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.