Panayiotou v Prieston [2013] NSWADT 273

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Panayiotou v Prieston [2013] NSWADT 273 Hearing dates: 20 and 24 May 2013 Decision date: 29 November 2013 Jurisdiction: Retail Leases Division Before: S Higgins, Deputy President Decision: Application dismissed Catchwords: Retail lease - claim for variation of lease, refund of rent and damages Legislation Cited: Retail Leases Act 1994 Cases Cited: Nicolaou and Anor v GPT Re Limited [2010] NSWADT 151 W & K Holdings v Mayo [2013] 1063 Category: Principal judgment Parties: Patty Panayiotou (Applicant) Anna M Prieston (Respondent) Representation: Counsel M W Sneddon (Respondent) P Panayiotou (Applicant in person) MK Grew Solicitors (Respondent) File Number(s): 125146

reasons for decision

Introduction 1On 5 October 2012, the lessee applicant, Patty Panayiotou, lodged a retail leases claim and an unconscionable conduct claim against the lessor respondent, Anna Prieston. Both claims were made pursuant to the Retail Leases Act 1994 (RL Act). 2In December 2011, the applicant and the respondent executed a written lease for premises, at 188 Victoria Road Drummoyne (the leased premises), from which the applicant operates a retail bridal gown business. 3At the time the applicant lodged her claims, she also lodged an application for urgent interim order. That order was dismissed, on 18 October 2012. However, the Tribunal made orders for the filing and serving of evidence by the parties. On 13 December 2012, the applicant informed the Tribunal that she did not press her unconscionable conduct claim and the matter proceeded on the basis of her retail leases claim. That claim was heard on 20 and 24 May 2013. 4In her application, the applicant sought a number of orders, including orders to give effect to the 14 matters raised, by her former solicitor, in a letter, dated 27 July 2012, to the applicant's solicitor. Many of these were not orders the Tribunal could make, in regard to a 'retail tenancy claim' (see s 72 of the RL Act). 5A 'retail tenancy claim' is defined in s 70 of the RL Act and it relevantly provides as follows: 70 Definitions In this Division: retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), (ii) a claim for relief from payment of a specified sum of money, (iii) a claim for the doing of specified work or the provision of specified services, (iv) a claim for the surrender of possession of specified premises, (v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, (vi) a claim for relief against forfeiture, (vii) a claim regarding the rectification of the lease, (viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations, (ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease, (x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E, (xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond, (b) ... 6To the extent the applicant's application was a 'retail tenancy claim' the orders sought by the applicant were as follows: (a) variation of the lease as follows: - commencement date to be altered to the date on which the awning over the shop window was completed; - no rent payable for 12 months from the new commencement date; - rent to be calculated at a rate of $200 per week plus GST for a further 5 years; - a further option of 3 plus 3 years and during this option period the rent to be $300 per week plus GST, but in the event the competing bridal shop next door closes down and no other competing business opens in its place, a weekly rental of $400 plus GST; (b) rent paid to date be refunded to the applicant; (c) the respondent to do all things necessary at its cost to: - repair and make safe the wooden floor in the toilet of the leased premises; - relocate the upstairs tenants electrical switchbox from the leased premises and until such time as the upstairs tenants electricity is separately metered the respondent to pay the applicant's electricity costs; - repair and make safe the roof of the building so that there is no risk of water seeping through to any part of the leased premises; and (d) $60,000 for loss of business due to the delay and negligence of the respondent in failing to have completed all the necessary work prior to the commencement of the lease. 7The orders sought relate to the applicant's claims that the respondent failed to undertake the work agreed to prior to the execution of the lease, as well as failing to repair a leaking roof, and as a result she was unable to open her shop for trading for some months after the lease commencement date causing her to lose business. 8The onus is on the applicant to establish her claims, giving rise to the orders sought. 9While I have found that the respondent failed to undertake the work agreed to prior to the execution of the lease, for the reasons set out below I have found that the applicant has otherwise failed to establish her claims were a breach of the lease, giving rise to the orders sought.