Benyameen v Wetherill Park Market Town Pty Ltd [2011] NSWADT 85

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Benyameen v Wetherill Park Market Town Pty Ltd [2011] NSWADT 85 Hearing dates: 21 and 22 February 2011 Decision date: 22 February 2011 Before: M Chesterman, Deputy President B Harrison, Non-judicial Member (Advisory) Decision: The application is dismissed. Catchwords: Retail lease - res judicata - issue estoppel Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Shepherds Producers Co-operative Limited v Lamont [2009] NSWSC 294 Taylor v Goldsmith (1950) 81 CLR 446 Category: Principal judgment Parties: Akhaker Benyameen (Applicant) Wetherill Park Market Town Pty Ltd (Respondent) Representation: T Bland (Applicant) L Pretti (Respondent - agent) File Number(s): 105027

Judgment

Introduction 1This judgment contains the reasons supporting a decision given ex tempore at the hearing of an Application filed on 2 September 2010 by Akhaker Benyameen, a lessee under a lease governed by the Retail Leases Act 1994, against the Respondent lessor, Wetherill Park Market Town Pty Ltd. 2One of the grounds on which the Applicant sought relief was that the Respondent had engaged in unconscionable conduct. Accordingly, the Tribunal was constituted in accordance with clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). It was constituted by a Deputy President who is a member of the Retail Leases Division, assisted by an appropriately qualified member (Non Judicial Member Harrison), acting in an advisory capacity only. Because no second advisory member was available to assist at the hearing, the Tribunal has proceeded with only one such member. At the commencement of the hearing, it drew the parties' attention to the fact that it was authorised to do so by sub-paragraph (4)(a) of clause 4 of Schedule 2, Part 3B. 3The hearing of the Application took place on 21 and 22 February 2011. In an ex tempore decision delivered on 22 February, the Tribunal dismissed the Application. On 21 March 2011, the Registry received a request under section 89(3) for written reasons for this decision.