R & R Family Holdings Pty Ltd v Bevillesta Pty Ltd (Receivers and Managers Appointed) [2013] NSWADT 95

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: R & R Family Holdings Pty Ltd v Bevillesta Pty Ltd (Receivers and Managers Appointed) [2013] NSWADT 95 Hearing dates: 19 February 2013 Decision date: 30 April 2013 Jurisdiction: Retail Leases Division Before: S Higgins, Deputy President Decision: 1. The interim order made, on 17 October 2012, is varied in the terms set out in paragraph 5 of these reasons for decision. 2. No order as to costs in regard to this application for interim order and the applicant's earlier application for an interim order. Catchwords: Interlocutory/interim order - application by respondent seeking dissolution or vacation of earlier interim order Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273 Townsend v Chief Executive, State Rail Authority [1999] NSWADT 58 Category: Interlocutory applications Parties: R & R Family Holdings Pty Ltd (applicant) Bevillesta Pty Ltd (Receivers and managers Appointed) Representation: K Rees SC (for the applicant) T Marskell (for the respondent) Gilbert & Tobin Lawyers (for the respondent) File Number(s): 125150 Publication restriction: N/A

REASONS FOR DECISION

Introduction 1On 18 December 2012, the respondent, the owner of the Top Ryde City Centre (the Centre), made an application for an interim order in these proceedings. In that application the respondent sought a number of orders. The principal order sought was in the following terms: 1. Pursuant to section 72(1)(g) of the Retail Leases Act 1994 (NSW), the Urgent Interim Order made by the Tribunal in proceedings no. 125150 on 17 October 2012 be dissolved or vacated. 2In the alternative, the respondent sought a variation to the urgent interim order made on 17 October 2012. The variations sought related to the applicant paying the outstanding rent, outgoings and promotion levies as well as the applicant being required to provide a bank guarantee in accordance with the terms of the lease. The respondent also sought an order that the applicant pay its costs in regard to this interim order application and the applicant's earlier interim order application. 3The applicant had entered into a written lease with the respondent, in 2010, for shop GRD-R3005 in the Centre (the Lease). The permitted use of the leased premises (the shop) is 'Modern Australian menu including Pizza, Paster (sic), Rissotto (sic) limited to Five (5) dishes each'. The Lease is for a term of 10 years, commencing on 4 August 2010. And the applicant remains in possession at the time of hearing of this application. 4The applicant asserts that the tribunal has no power to make the principal order sought by the respondent in its interim order application. In the alternative, the applicant argues that its claim against the respondent will be prejudiced if the order sought is made. It makes a similar argument in regard to the variation orders sought by the respondent. 5The respondent's interim order application was heard on 19 February 2013. I reserved my decision at the conclusion of that hearing. For the reasons set out below, I have found that it is appropriate to vary interim order 1, made on 17 October 2012, as follows: 1.Subject to the applicant: (a) paying to the respondent a weekly rent, in the amount of $1,846.00, commencing on1 February 2013. That rent is to be paid each and every Friday, unless the respondent agrees to some other day; and (b) paying outgoings and promotion levy in accordance with clauses 7 and 8.3 of the Lease as and when they fall due, and (c) providing the respondent with a bank guarantee, in favour of the respondent, for an amount that equals 12 weeks rent (i.e. 12 x $1,846.00). That bank guarantee is to be provided to the respondent on or before 10 May 2013; the respondent must not pending the determination of these proceedings or further order of the tribunal: (d) seek to exercise its right under clause 18.2 and 18.3 of the lease between the Applicant and the Respondent by reason of the alleged breaches of the Applicant set out in the letter from the solicitors for the Respondent dated 11 October 2012; or (e) take any other step to terminate, or seek to terminate, the lease between the Applicant and the respondent by reason of the alleged breaches of the Applicant set out in the letter from the solicitors for the Respondent dated 11 October 2012. 6For the reasons set out below, I have also determined that there should be no orders as to costs in regard to this interim order application and the earlier interim order application of the applicant.