Toga Pty Ltd v Perpetual Nominees Ltd (RLD) [2013] NSWADTAP 2

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Toga Pty Ltd v Perpetual Nominees Ltd (RLD) [2013] NSWADTAP 2 Hearing dates: 20 September 2012 Decision date: 15 January 2013 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President K Rickards, Judicial Member T Tyler, Non-judicial Member Decision: 1. Declare that the Appellant / Cross Respondent is obliged to pay to the Respondents / Cross Appellants the Annual Rent and the Lessee's Contributions from 13 November 2010 to 12 November 2011 under the renewed lease that came into existence upon the exercise by the Appellant / Cross Respondent of the option contained in the registered Sublease AA989655B. 2. The proportion of Annual Rent and Lessee's Contributions held in escrow in the Macquarie Bank Open Legal Investment, Account number 104563, is to be paid to the Respondents / Cross Appellants. 3. Any application by the Respondents / Cross Appellants for the costs of the appeal and cross appeal must be filed and served within 28 days, along with supporting submissions and any additional submissions they may wish to make as to the costs of the Tribunal hearing. Any submissions in reply by the Appellant / Cross Respondent must be filed and served within a further 28 days. These matters of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a hearing is required. 4. Liberty to apply within 28 days for clarification and/or amendment of Order 2. Catchwords: Retail lease - construction - terms of option lease - Tribunal's powers in relation to rectification Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Ashington Holdings Pty Ltd v Wipema Services Pty Ltd (No 2) (1998) 9 BPR 16,515 Burns Philp Hardware Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Lewis v Stephenson (1898) 67 LJQB 296 Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 Phoenix Commercial Enterprises Pty Limited v City of Canada Bay Council [2010] NSW CA 64 Riltang P/L v L P/L [2004] NSWSC 977 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5 Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 Toga Pty Limited v Perpetual Nominees Limited and CFS Managed Property Limited [2012] NSWADT 80 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 Texts Cited: Meagher, Gummow and Lehane, Equity: Doctrine and Remedies (Butterworths, 4th edn, 2002) Category: Principal judgment Parties: Toga Pty Ltd (Appellant / Cross Respondent) Perpetual Nominees Ltd (First Respondent / Cross Appellant) CFS Managed Property Ltd (Second Respondent / Cross Appellant) Representation: M Leeming SC and S Cirillo (Appellant / Cross Respondent) J Simpkins SC and M Ellicott (Respondents / Cross Appellants) Corrs Chambers Westgarth (Appellant / Cross Respondent) Minter Ellison Lawyers (Respondents / Cross Appellants) File Number(s): 129010, 129014 Decision under appeal Citation: Toga Pty Limited v Perpetual Nominees Limited and CFS Managed Property Limited [2012] NSWADT 80 Date of Decision: 2012-04-30 00:00:00 Before: Retail Leases Division File Number(s): 115048, 115056