Profilio v Coogee Bay Village Pty Ltd [2009] NSWADT 211

Set aside by Appeal :

CITATION: Profilio v Coogee Bay Village Pty Ltd [2009] NSWADT 211

DIVISION: Retail Leases Division

APPLICANTS Joe Profilio PARTIES: Rozi Sajko

RESPONDENT Coogee Bay Village Pty Ltd

FILE NUMBER: 085127

HEARING DATES: 15, 16, 17 and 22 June 2009; 16 and 28 July 2009

SUBMISSIONS CLOSED: 28 July 2009

DATE OF DECISION: 10 August 2009

BEFORE: Chesterman M - Deputy President; Ward R - Non-Judicial Member

CATCHWORDS: Retail lease – 'exclusivity clause' – interpretation of contractual terms – pre-lease misrepresentation – unconscionable conduct – misleading or deceptive conduct – section 11, Retail Leases Act 1994

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

Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 CASES CITED: Golden Harvest (Aust) P/L v Paing P/L [2004] NSWCA 85 Prasad v Fairfield City Council [2001] NSWADT 28

APPLICANTS H Stitt, barrister (15, 16, 17 and 22 June 2009) REPRESENTATION: J Profilio, agent (16 and 28 July 2009)

RESPONDENT T Rogers, barrister

1. The Tribunal declares as follows:-(a) that the Respondent, through granting or having granted to Backpacker World Travel Pty Ltd a lease of premises at 194 Coogee Bay Road, Coogee, on terms that permitted the lessee to use these premises for the provision of internet and email services, was in breach of an obligation under its current lease of premises at 192 Coogee Bay Road, Coogee to the Applicants, such obligation being to ensure that the Applicants had exclusive use of these premises as an internet café; and (b) that the Respondent is liable to compensate the Applicants for the economic harm resulting from this breach ORDERS: 2 (a) Any application for costs of the proceedings so far must be filed and served, with supporting submissions, within 28 days of the date of this decision. The submissions must put forward grounds for making such an order before the proceedings have come to an end.(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, this matter of costs will be resolved 'on the papers', pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 3. The matter is set down for further directions at 10.30 a.m. on 13 August 2009.