Snowpave Pty Ltd v Gibo Pty Ltd and Edite Pty Ltd (No 2) [2011] NSWADT 25

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Snowpave Pty Ltd v Gibo Pty Ltd and Edite Pty Ltd (No 2) [2011] NSWADT 25 Hearing dates: On the papers Decision date: 08 February 2011 Jurisdiction: Retail Leases Division Before: Deputy President Olsson SC Decision: i) Respondent to pay the Applicant the sum of $21,306.50. ii) Respondent to pay the Applicant an amount of interest calculated at the interest rate applicable under section 72A of the Retail Leases Act 1994 (NSW), calculated from 12 June 2008. iii) Once the sums in (i) and (ii) are paid, the moneys in the jointly controlled account are to be released forthwith to the Respondent. iv) Each party is to bear its own costs. Catchwords: Damages and Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71; Rucom Pty Ltd and Anor v Multiplex and Ors [2010] NSWADT 1; Barsoum v Glebe Administration Board (No. 2) [2002] NSWADT 174; Gizahand Armstrong Jones v Axa Trustees Ltd (No. 2) [2001] NSWADT 164 Category: Consequential orders Parties: Snowpave Pty Ltd (applicant/cross respondent) Gibo Pty Ltd (respondent/1st cross applicant) Edite Pty Ltd (2nd cross applicant) Representation: Mr T Maltz (applicant) Mr Bruno Cara (respondent) File Number(s): 085112, 085145

REASONS FOR DECISION 1The Tribunal delivered its decision in this matter on 27 August 2010 and made orders that : a) Clause 20.1 of Lease no AC 680330D between the Applicant and Respondent and commencing on 1 July 2006 includes within the definition of "Lessee's Work" inter alia: the motors and ventilation ducting servicing Lot 128 in SP 71747 and the grease trap. b) The Applicant is entitled to refuse to give any other tenant permission to use the "Lessee's Works" under Clause 20.1 unless such tenant contributes to the Applicant a sum in accordance with Clause 20.4 towards the installation, maintenance, repair and costs of electrical power in respect of the Lessee's works. c) The Respondent pays the Applicant or procures from the lessee of shop 3, such sum as is equivalent to the sum of money otherwise payable by the lessee of shop 3 pursuant to clause 20.4 of the lease. d) With respect to the Cross Application, for the avoidance of doubt, the meaning of "Lessee's work" in clause 20 of the subject lease does include i tems which were installed prior to the commencement of the lease and does include the grease trap and ventilation ducting servicing the Lot identified in clause 20.1 of the lease. e) Further, the meaning of the expression "incurred" in clause 20.4 does include any expenses incurred prior to the commencement date of the lease, does not refer to expenses which were incurred only by the Applicant and may include costs referred to in the letter of 21 April 2008 (referred to in paragraph 2 of the Cross Application). f) The Tribunal makes a declaration that the lease contains an implied term requiring the Cross Respondent to perform its obligations in good faith and to reasonably co-operate in the performance of its obligations. g) The Cross Application is otherwise dismissed except with respect to paragraph 7 which deals with the monies held in the controlled monies account. 2The parties have now made submissions as to the calculation of the monies payable for the lessee's works (and monies in the controlled monies account) and as to costs.