Moussa v Warren [2013] NSWADT 189

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Moussa v Warren [2013] NSWADT 189 Hearing dates: 18 March 2013 Decision date: 22 August 2013 Jurisdiction: Retail Leases Division Before: S Higgins, Deputy President T Tyler, Non-Judicial Member M Foldi, NonJudicial Member Decision: The applicant's application is dismissed. Catchwords: Retail lease - Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: 73 Union St Retail Pty Ltd v J & S Group Pty Ltd (RLD) [2013] NSWADTAP 32 Arjay Investments Pty Ltd v Morrison's Outdoor Catering Pty Ltd, Unreported, Supreme Court of NSW, 1 May 1995 Aspromonte Pty Ltd v Zagari [1999] NSWSC 831 Dellwest Pty Ltd v Cafabe Pty Ltd Unreported, Supreme Court of NSW, 26 November 1997 Hewett v Court (1983) 149 CLR 639 Long v Piper [2001] NSWCA 342 Perhauz & Anor v SAF Properties Pty Ltd & Ors [2007] NSWADT 122 Randi Wixs Pty Ltd v Pokana Pty Ltd (No 2) [2003] NSWADT 4 Category: Principal judgment Parties: Nehad Moussa (Applicant) John Warren (Respondent) Representation: N Moussa (Applicant in person) Cummins Hendricks Pty Ltd (Respondent) File Number(s): 125184

REASONS FOR DECISION

Background 1On 24 December 2012, the applicant, Nehad Moussa, made an application for original decision, under s 37 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and ss 71 and 62B of the Retail Leases Act 1994 (RL Act). The applicant also made an application for an interim order. The interim order application was heard on 28 December 2012. At the conclusion of the hearing of the interim order application, Judicial Member, Montgomery, gave an oral decision refusing the applicant's application. The Judicial Member also made orders for the filing and serving of evidence in regard to the applicant's substantive claim. 2The essence of the applicant's claim is that the respondent agreed to grant him a retail shop lease of the kitchen and restaurant at the Commercial Hotel Lockhart (the Hotel). The applicant also claimed that the respondent's conduct in failing to provide him with a written lease and his conduct in having him 'evicted' from the Hotel amounted to unconscionable conduct, contrary to s 62B of the RL Act. 3The respondent, Mr John Warren, together with his wife, Mrs Carol Warren, are the owners of the Hotel. They purchased the Hotel in late 2010. 4In October 2012, the respondent and his wife placed an advertisement in the Melbourne Age seeking a cook. They also advertised the Hotel for lease (i.e. long term) or sale. 5The applicant, who said he had worked in the restaurant industry for 25 years, responded to the respondent's advertisement. He initially contacted the respondent by telephone and subsequently travelled, from Melbourne to Lockhart, on 11 November 2012. On this day, he met with the respondent and his wife and following discussions with them he commenced preparing and cooking meals, in the kitchen of the Hotel, for the Hotel patrons. With the exception of the days when the applicant returned to Melbourne for two short trips, the applicant continued to prepare and cook meals in the kitchen of the Hotel, until 20 December 2012. During this time he also resided in the Hotel. On 20 December 2012, the respondent asked the applicant to leave. A dispute arose between the parties, a police officer attended late that evening and the applicant left the Hotel and has not returned. 6The remedies sought by the applicant are as follows: an order granting him possession of the kitchen and restaurant of the Hotel (i.e. 'my leased area (Restaurant)'); an order restraining the respondent from interfering with his business and re-entering the kitchen and restaurant of the Hotel; damages for loss suffered as a result of the respondent's conduct. 7The respondent contends that at no time had he reached an agreement to lease the kitchen and restaurant of the Hotel. Nor had he engaged in unconscionable conduct falling within s 62B of the RL Act. In the alternative, in the event the tribunal were to find that a lease had been entered into between the parties, the respondent contended that the applicant breached the lease and the lease was terminated in accordance with its terms. 8The applicant's application was heard, on 18 March 2013, at the Wagga Wagga Local Court. The applicant was unrepresented at the hearing. The respondent was assisted by Ms McFarlane, solicitor. 9At the conclusion of the hearing I reserved my decision. I have now considered all the material before the tribunal and find that the applicant has failed to establish his claim against the respondent. And these are my reasons for my findings.