Savona v Chapple [2010] NSWADT 195

CITATION: Savona v Chapple [2010] NSWADT 195

DIVISION: Retail Leases Division

APPLICANTS Paul Savona and Suzanna Gizella Savona PARTIES: RESPONDENT Colin George Chapple and Pauline Chapple

FILE NUMBER: 095102

HEARING DATES: 29 March 2010 and 23 April 2010

SUBMISSIONS CLOSED: 14 May 2010

DATE OF DECISION: 30 July 2010

BEFORE: Rickards K - Judicial Member

CATCHWORDS: Compensation

LEGISLATION CITED : Retail Leases Act 1994

CASES CITED: Laidlaw –v- Hiller Hewitt Elsley Pty Ltd [2009]NSWCA44; Empirnall Holdings Pty Ltd –v- Paull [1988]14 NSWLR 523

APPLICANT G Dilworth, barrister REPRESENTATION: RESPONDENT In person

1.The Respondents are to pay the sum of $46,696.36 to the Applicants ORDERS: 2.Unless within 14 days the Applicants file and serve submissions showing why costs should be awarded against the Respondents, there is to be no order as to costs 3.If submissions are filed pursuant to order 2, the Respondents are to file and serve any submissions in response within a further 14 days 4.The Tribunal will determine the matter of costs without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

BACKGROUND

1 The Applicants in these proceedings were the Lessors of retail premises located at and known as Unit 1, 50 Parraweena Road, Gwandalan, New South Wales ("the premises") and the Respondents were the Lessees.

2 The Lessees conducted a hardware retail business at the premises. The Lessees had purchased this business in about August 1994, at which time the continuing lease of the premises was assigned to them. 3 The parties then entered into a new lease of the premises on 1 May 1996 which expired on 30 April 1999. A further lease of the premises was then entered into between the parties on 1 May 1999 and the term of that lease ended on 30 April 2002. This further lease agreement between the parties is referred to below within this decision as "the lease agreement". 4 The Lessees did not wish to enter into any further lease agreement with the Lessors after April 2002, and instead remained in possession of the premises upon a monthly basis. The Lessees then continued conduct of the hardware business at the premises until late June 2008 when the premises were vacated. 5 The Lessors seek orders for payment by the Lessees of unpaid rent claimed to be due under the lease, interest in respect of the unpaid rent, the cost of painting the premises, the cost of removal of the Lessees' fixtures and other items, and the cost of repairs required to be undertaken at the premises. 6 The Lessees concede that some of the rent due was not paid, but argue that any outstanding rent is not payable by them but is instead payable by a company which they incorporated on or about 1 July 2007, called Summerland Building Supplies Pty Ltd. The Lessees also contend that any obligations which may be found to exist in respect of the cost of cleaning, painting, or removal of fixtures and other items, rest only with Summerland Building Supplies Pty Ltd. HEARING