PT Ltd v YKH International Pty Ltd [2010] NSWADT 96

CITATION: PT Ltd v YKH International Pty Ltd [2010] NSWADT 96

DIVISION: Retail Leases Division

APPLICANT P.T. Limited

FIRST REPSONDENT YKH International Pty Limited PARTIES: SECOND RESPONDENT Youn Kwa Kim

THIRD RESPONDENT Myung Se Kim

FILE NUMBER: 095109

HEARING DATES: 12 March 2010

SUBMISSIONS CLOSED: 12 March 2010

DATE OF DECISION: 16 April 2010

BEFORE: Fox R - Judicial Member

LEGISLATION CITED : Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997

APPLICANT N Sharp, solicitor REPRESENTATION: RESPONDENT Mr Kim, solicitor

ORDERS: 1. Application dismissed 2. No order for costs.

REASONS FOR DECISION

The Facts

1 The Applicant, a company which owns Westfield Shopping Town, Tuggerah issued these proceedings against three Respondents being the company YHK International Pty Limited, Youn Kwa Kim and Myung Se Kim, the latter two having been, in 2007, Directors of YHK International Pty Limited. On 1 July 2007 the company entered into a Lease of lock up shop 2008 in Westfield Tuggerah, for the sale of homewares, giftware, kitchenware, furniture and associated items. The Lease bore the signatures of Youn Kwa Kim and Myung Se Kim as Directors and both signed personally as guarantors. It was for a term of three years and called for an annual base rent of $162,500.00 plus promotion contribution of $8,150.00 per annum. A Bank Guarantee of $40,423.70 was also required.

2 Trading apparently commenced, but by 28 March 2008 the rent was $42,361.46 in arrear and the occupancy was terminated. The premises were subsequently re-let, at a lower rent, and the Applicant seeks to recover the difference between the two, computed to an amount of $194,606.27 plus interest.