Lewkovitz v Dover [2012] NSWADT 227

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Lewkovitz v Dover [2012] NSWADT 227 Hearing dates: 27, 28 and 29 August 2012 Decision date: 05 November 2012 Jurisdiction: Retail Leases Division Before: PR Callaghan SC, Deputy President G Pinter, Non-Judicial Member M Lonie, Non-Judicial Member Decision: 1.In proceedings 115138, ORDER that the respondent pay to the applicant $109,967.64, and interest thereon of $8,247.57, totalling $118,215.21. 2.In proceedings 115138, NOTE that the sum of $109,967.64 referred to in paragraph 1 has been calculated to include a credit due by the applicant to the respondent for the sum of $28,445.22 referred to in paragraphs 3 and 4 below. 3.In proceedings 115180, DECLARE that the applicant (in those proceedings) does not owe to the respondent (in those proceedings) the sum of $28,445.42. 4.In proceedings 115180, NOTE that the said sum of $28,445.42 has been accounted for in the sum of $109,967.64 referred to in paragraph 1 above as referred to in paragraph 2 above. 5.In each of proceedings 115138 and 115180, NO ORDER as to costs and NOTE that each party is to pay his own costs thereof. Catchwords: Retail tenancy claim - unconscionable conduct claim - arrangements for reductions of rent and outgoings - estoppel - termination of lease - repudiation of lease - accounting - lessor's loss on re-letting - lessees' fit-out - sale of premises - assignment of debts and causes of action - interest - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil Procedure Act 2005 Conveyancing Act 1919 Corporations Act 2004(Cth) Retail Leases Act 1994 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: A & J Verdi Pty Ltd v Uckan (RLD) (No.2) [2011] NSWADTAP 6 Arnold v Maun (1957) 99 CLR 462 A.G. v World Best Holdings Ltd (2005) 63 NSWLR 557; Armstrong Management Pty Ltd v Saies- Bond & Associates Pty Ltd [2007] NSWADTAP 47 Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 Campbell's Cash & Carry Ltd v Fostif Pty Ltd (2006) 229 CLR 386 Dykes & Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 7 Holt v Heatherfield Trust Ltd [1942] 2 K.B.1 Karacominakis v Big Country Development Pty Ltd [2000] NSWCA 313 Kumaragamage v Rallis [2001] NSWSC 466 Monk v Australian and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2004) 220 ALR 267 Trendtex Trading Corporation v Credit Suisse [1982] A.C. 679 Vimblue Pty Ltd v Toweel [2009] NSWSC 494 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Texts Cited: Carter on Contract Young, Croft, Smith, On Equity Category: Principal judgment Parties: George Lewkovitz (Applicant in 115138 and Respondent in 115180) Tom Dover (Respondent in 115138 and Applicant in 115180) Representation: Counsel B Oliak for George Lewkovitz C Stomo for Tom Dover Norbert Lipton & Co for George Lewkovitz Klonis & Co for Tom Dover File Number(s): 115138, 115180