Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2) (RLD) [2012] NSWADTAP 35

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2) (RLD) [2012] NSWADTAP 35 Hearing dates: 21 and 22 June 2012 Decision date: 03 October 2012 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President P Molony, Judicial Member J Schwager, Non-judicial Member Decision: 1. The Respondent is to pay to the Appellant the sum of $97,535.72. 2. (a) Within 28 days of the date of this decision, the Appellant is to file and serve: (i) its supplementary submissions relating to the appeal in file 119042; and (ii) its submissions relating to the costs of the present appeal (file 119034). (b) Within a further 28 days, the Respondent is to file and serve submissions in reply. (c) The Appellant's and the Respondent's submissions relating to the appeal in file 119042 are to be served on the Intervenor in that appeal (the Registrar of Retail Tenancy Disputes) as well as on the opposing party. (d) Any submissions by the Intervenor relating to the appeal in file 119042 are to be filed and served within 21 days after service of the Respondent's submissions. (e) These questions regarding costs will then be decided 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel determined that a hearing should take place. Catchwords: Retail lease - obstruction of sight-lines and access to shop - unconscionable conduct - causation - assessment of damages Legislation Cited: Administrative Decisions Tribunal Act 1997 Australian Securities and Investment Commission Act 2001 (Cth) Competition and Consumer Act (Cth) 2010 Retail Leases Act 1994 Trade Practices Act 1974 (Cth) Cases Cited: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd [2006] NSWADT 323 Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47 Atma Investments Pty Ltd v The Astor Pty Ltd (RLD) [2003] NSWADTAP 53 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd [2009] FCA 17 Browne v Dunn (1893) 6 R 67 Butt v McDonald (1896) 7 QLJ 68 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Duncan v Aljayar Pty Ltd [2010] NSWADT 224 Jones v Schiffmann (1971) 124 CLR 303 Mackay v Dick ((1881) 6 App Cas 251 Macquarie International Health Clinic Pty Ltd v Sydney South Area Health Service [2010] NSWCA 268 Samaha v Corbett Court Pty Ltd [2006] NSWSC 1441 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152 Spuds Surf Chatswood Pty Ltd v PT Ltd (No 3), PT Ltd v Spuds Surf Chatswood Pty Ltd (No 2) [2011] NSWADT 186 Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 United Group Rail Services Ltd v Rail Corporation NSW (2009) 74 NSWLR 618; [2009] NSWCA 177 Texts Cited: Duncan, Commercial Leases in Australia (Law Book Co, 4th ed, 2005) Lang's Commercial Leasing in Australia (CCH, 1999-, loose-leaf) Category: Principal judgment Parties: Spuds Surf Chatswood Pty Ltd (Appellant) PT Ltd (Respondent) Representation: Counsel A Fernon (Appellant) S Angyal SC (Respondent) Herro Solicitors (Appellant) Colin Biggers & Paisley Lawyers (Respondent) File Number(s): 119034 Decision under appeal Jurisdiction: 9108 Citation: Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152 Date of Decision: 2011-06-22 00:00:00 Before: Retail Leases Division File Number(s): 065171