Gani v Maiolo [2011] NSWADT 219

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Gani v Maiolo [2011] NSWADT 219 Hearing dates: 10/03/2011 and 18/04/2011 Decision date: 14 September 2011 Jurisdiction: Retail Leases Division Before: D Bluth, Judicial member Decision: 1. The Applicant was in breach of the Lease on 3 August 2010. 2.The bond money is not to be returned to the Applicant but forfeited by the Respondent. 3.The parties are to pay their own costs of the proceedings. Catchwords: Promissory Estoppel Legislation Cited: Retail Leases Act, 1994 Texts Cited: Meagher Gummow & Lehane, Equity Doctrines and Remedies, 2nd Ed Snell's Principles of Equity, 28th Ed Category: Principal judgment Parties: Mohammad Murul Gani (Applicant) Maria Maiolo and Raffaele Maiolo (Respondents) Representation: Mooney & Kennedy (Applicant) GP Legal (Respondent) File Number(s): 105144

REasons for decision 1This is a dispute between Mohammad Murul Gani as the lessee (Applicant) and Maria Maiolo and Raffaele Maiolo the lessors (Respondent) in connection with a lease at 155 Pittwater Road, Manly (Premises) being Registered Lease No AF4713685 (Lease) entered into on or about 13 April 2010. 2The Applicant operated an Indian Restaurant briefly at the premises. 3At the premises a restaurant had always been conducted and the last restaurant was called Terracotta which according to the lessor (and this was not challenged in the evidence) had a four and a half stars rating. 4Terracotta gave notice to the Respondent that it was vacating the premises and the Respondent advertised in the Sydney Morning Herald for a new tenant under the heading "Restaurant Opportunity". 5The Applicant answered the advertisement and met the Respondent on the premises, and after inspection agreed to lease the premises on the terms then being offered by the Respondent. 6Consequently a lease was entered into between the Applicant and the Respondent for five years plus two days and the Applicant entered into possession after a rent free period and paid rent for two months. 7The Respondent alleged that the Applicant was in arrears of rent and through the Respondent's lawyer gave notice to the Applicant regarding those arrears. Subsequently the Respondent on 3 August 2010 locked the Applicant out of the premises. 8The Applicant approached this Tribunal for Original Decision in respect of the following orders: 1. Relief from forfeiture of the Lease; and 2. The Bond money of $25,000.00 retained by the Respondent be returned to the Rental Bond Unit. Subsequently the Tribunal was advised that order number 1 (the relief against forfeiture) was not being pursued and thus the issue before this Tribunal was in respect of Order number 2 only.