Duncan v Aljayar Pty Ltd [2010] NSWADT 224

CITATION: Duncan v Aljayar Pty Ltd [2010] NSWADT 224 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Retail Leases Division

APPLICANT Peter Duncan and Andrea Duncan PARTIES: RESPONDENT Aljayar Pty Ltd

FILE NUMBER: 105061

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 August 2010

DATE OF DECISION: 13 September 2010

BEFORE: Fox R - Judicial Member

CATCHWORDS: Unconscionable Conduct

LEGISLATION CITED : Retail Leases Act 1994 Administrative Decisions Tribunal Act

CASES CITED: Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 J V Idola Pty Ltd V Lovecek [2009] NSWADT 258

APPLICANT P O'Loughlin, solicitor REPRESENTATION: RESPONDENT S Macedone, solicitor

ORDERS: Matter to proceed as Combined Retail Tenancy and Unconscionable Conduct Claim

REASONS FOR DECISION

Preliminary Decision – Unconscionable Conduct Claim

1 The Applicants seek damages of $82,467.16, interest and costs, arising out of the termination of their occupation of bar and restaurant premises at Cronulla. The lease, which commenced in February 2006 and was for a term of 3 years with a 3 year option , was assigned to the Applicants in March 2007.

2 The Application shows 6 grounds, the fifth of which claimed unconscionable conduct being :- "The Respondent had no proper grounds to refuse consent to assignment of the lease and refused consent for a purpose other than the legitimate business interests contemplated by the lease and the Retail Leases Act . Particulars 1) The financial resources and retailing skills of the proposed assignees were not inferior to those of the Applicants"