Diagne v Payman [2011] NSWADT 206

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Diagne v Payman [2011] NSWADT 206 Hearing dates: 13 April 2011, 15 June 2011 Decision date: 31 August 2011 Jurisdiction: Retail Leases Division Before: K Rickards, Judicial Member Decision: 1.The lessee Mohamed Diagne is to pay the lessor Farid Payman the sum of $20,403.09 in respect of arrears of rent and outgoings payable as at 15 June 2011, together with any further amount payable to the lessor as and from 15 June 2011 to the date of this decision in respect of rent or outgoings pursuant to the terms of the lease agreement between the parties. 2.The lessee Mohamed Diagne is to pay the lessor Farid Payman interest in the sum of $342.38, calculated at the prescribed rate of 8.75% per annum in respect of the specified amount set out in order 1 above for the period 15 June 2011 to the date of this decision. 3.The lessee's claims against the lessor for misleading and deceptive conduct are dismissed. 4.The lessee Mohamed Diagne is to provide a bank guarantee in favour of the lessor Farid Payman in the sum of $20,020.00 in accordance with the terms of the lease within 21 days. 5.In default of compliance with order 4 above, the lessor Farid Payman shall be entitled to immediate possession of the premises at 280 King Street Newtown. 6.The lessee's claims for orders for repair of the premises at 280 King Street Newtown are dismissed. 7.The lessor's claim for an order for immediate possession of the premises is dismissed. 8.The lessee Mohamed Diagne is to pay 50% of the costs of the lessor Farid Payman restricted to preparation for and attendance at the hearing of these proceedings, upon a party/party basis, as agreed or assessed. Catchwords: Settlement of dispute; misleading and deceptive conduct; claim for outgoings Legislation Cited: Retail Leases Act 1994; Administrative Decisions Tribunal Act 1997 Cases Cited: Davis v Sydney Harbour Foreshore Authority (No.2) [2009] NSWADT 28 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] 129 CLR 99; Kyluk v The Bike Mason Pty Ltd & anor. [2007] NSWADT 96 Category: Principal judgment Parties: Mohamed Diagne (Applicant in 105172, Respondent in 115029) Farid Payman (Respondent in 105172, Applicant in 115029) Representation: Counsel K Ginges (Diagne) A Di Francesco (Payman) Nicholas Angelos & Co (Payman) File Number(s): 105172, 115029