Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36 Hearing dates: 12 and 13 May 2011 Decision date: 17 August 2011 Jurisdiction: Appeal Panel - Internal Before: Appeal Panel comprising: M Chesterman, Deputy President K Rickards, Judicial Member B Harrison, Non-judicial Member Decision: 1. The appeal is allowed in part. 2. Orders 1, 3 and 4 of the Tribunal made on 17 December 2010 are set aside. 3. The Appellants are jointly and severally liable to pay the sum of $60,405.00 to the Respondent by way of damages. 4. The stay of Order 2 of the Tribunal, granted on 18 February 2011 by the Appeal Panel, is discharged, with liberty to the parties to apply. 5. (a) Any party seeking an order for costs in the first instance or appellate proceedings in this matter is to file and serve its application for costs, with supporting submissions, within twenty-eight (28) days of the date of this decision. (b) If no such application is filed and served, there will be no order relating to the costs of the proceedings. (c) If such an application is filed and served, the opposing party must file and serve submissions in reply within a further twenty-eight (28) days. (d) Unless reasons are advanced for a hearing to be conducted, the issue of costs will be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997. Catchwords: Retail shop lease - lockout of lessee - removal of lessee's goods by lessor causing damage and economic loss - effect of Surveillance Devices Act 2007 on admissibility of video evidence - assessment of damages Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Surveillance Devices Act 2007 Cases Cited: AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301 Bowden v Lo (Unreported, Supreme Court of NSW, 19 May 1998, BC9802121) Bunning v Cross (1978) 141 CLR 54 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 Craig v South Australia (1995) 184 CLR 163 Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd and Anor [1996] NSWCA 184 Jones v Dunkel (1959) 101 CLR 298 Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 Parker v Comptroller General of Customs (2009) 252 ALR 619; [2009] HCA 7 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 Sport Developments Pty Ltd v Del Fabbro [2009] QCA 64 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Texts Cited: B Cairns, Australian Civil Procedure, 4th edition, Law Book Co, Sydney, 1996 Category: Principal judgment Parties: Prosha Pty Ltd (First Appellant) Stateland East Pty Ltd (Second Appellant) AXL Trading Pty Ltd (Respondent) Representation: Counsel S Reuben (Appellants) A Fernon (Respondent) Fraser Clancy Lawyers (Appellants) Peter M Wayne & Associates (Respondent) File Number(s): 119001 Decision under appeal Citation: AXL Trading Pty Ltd v Prosha Pty Ltd [2010] NSWADT 301 Date of Decision: 2010-12-17 00:00:00 Before: Retail Leases Division File Number(s): 085172, 085222