Nicoll v Barnett [2013] NSWADT 104

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Nicoll v Barnett [2013] NSWADT 104 Hearing dates: 21 March 2013 Decision date: 21 March 2013 Jurisdiction: Retail Leases Division Before: D Bluth, Judicial Member Decision: 1.The Respondent is to pay the Applicant the sum of $13,626.62 from 5 March 2013. Catchwords: Interest on the outstanding rent, make good obligations, compensation for default, reimbursement of expenses Legislation Cited: Retail Leases Act, 1994 Cases Cited: Cronulla Newsagency Pty Ltd v Pizzata & Ors [2002] NSWADT121 Diagne v Payman [2011] NSWADT 206 Ragi Pty Ltd v Kiwi Munchies Pty Ltd [2007] NSWADT 108 Subway Realty Pty Ltd v The Investment Pty Ltd [2010] NSWADT123 Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADTAP 24 Category: Principal judgment Parties: John Alan Nicoll and Lidwina Wilhelmina Seysenser (Applicant) Murray John Barnett (Respondent Representation: J Nicoll (Applicant in person) M Barnett (Respondent in person) File Number(s): 125147

reasons for decision

Background 1The applicants, John Alan Nicoll and Lidwina Seysener (Mr Nicoll), leased to Murray John Barnett, the respondent (Mr Barnett) premises being Shop 8, 331-335 Barrenjoey Road, Newport for two years from 30 June 2007 (the Lease). 2The permitted use under the lease was restaurant, take-away and home delivery of meals, fruit shop, greengrocer, delicatessen, licensed premises and café. Whether all of these uses were taken up by Mr Barnett is unclear from the evidence but, in any event, the property was used for part of the permitted use and the Tribunal are satisfied that the premises fall within the jurisdiction of the Tribunal under the Retail Leases Act 1994 (the Act). 3Pursuant to the terms of the terms of the Lease Mr Barnett paid the security deposit of $19,167.51 which was lodged by Mr Nicoll in accordance with the Act pursuant to the Retail Bond Scheme with the Retail Tenancy Unit. 4Mr Barnett vacated the shop on 1 July 2009 being the end of the two year period. The disputation between the parties relates to unpaid rent and the obligations of Mr Barnett to make good under the Lease. 5Mr Nicoll commenced proceedings in the Local Court against Mr Barnett for the balance of the unpaid rent, outgoings, interest and damages for breaches of the lease. These proceedings were transferred to this Tribunal and an Application for Original Decision was lodged by Mr Nicoll seeking the sum of $32,725.00 (the claim). 6The claim is made up of a number of discreet items as particularised in the Application as follows. * Particular 1 * Unpaid rent calculated as follows: Rent due $156,636.84 Rent paid $142,864.59 Unpaid rent $13,772.25