Estasy v Challenger Property Nominees & anor [2013] NSWADT 290

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Estasy v Challenger Property Nominees & anor [2013] NSWADT 290 Hearing dates: On the papers Decision date: 18 December 2013 Jurisdiction: Retail Leases Division Before: K Rickards, Judicial Member Decision: 1. The application for an order awarding interest is dismissed. 2. The parties are to bear their own costs of the proceedings. Catchwords: Interest, Costs Legislation Cited: Retail Leases Act 1994; Administrative Decisions Tribunal Act 1997: Cases Cited: Dykes and Wildie v Heatherway Pty Ltd [2007] NSWADT AP 26 Category: Principal judgment Parties: Ezzat Estasy and Carol Estasy (Applicants) Challenger Property Nominees Pty Limited (First Respondent) Challenger Listed Investments Limited (Second Respondent) Representation: Emil Ford Lawyers (Applicant) Henry Davis York (Respondents) File Number(s): 135017

REASONS FOR DECISION

Background 1The Applicants are the lessees of a retail shop located within the Kings Langley Shopping Centre in western Sydney, New South Wales ("the premises"). The Respondents are the owners and lessors of the premises. 2The original Application filed in these proceedings sought: (1)A declaration that the previous valuation of the "current market rent" payable under the subject lease for the period 1 July 2009 to 30 June 2011 provided by the valuer Lydia Awad on15 February 2010 did not comply with section 19 of the Retail Leases Act 1994 (the "RL Act") and was therefore not binding upon the parties; (2)An order that there be another retail valuer appointed by the Tribunal to carry out another valuation of the "current market rent" payable for the period 1 July 2009 to 30 June 2011; (3)An order for payment by the Respondents of the "difference" between the rent actually paid by the Applicants over that period and the new market rent for that period as now assessed; (4)An order that the Respondents pay interest to the Applicant in respect of any such "difference", and; (5)An order that the Respondents pay the Applicant's costs of these proceedings. 3The Application was subsequently amended to seek additional declaratory and restraining orders to: (1)permit the Applicants to continue to have a St George Bank automatic teller machine ("the ATM") within the premises, and; (2) restrain the Respondents from terminating the lease by reason of the presence of the ATM at the premises. 4Following commencement of these proceedings, the Respondents agreed that the valuation provided by Ms Awad should be set aside and that a new valuer should be appointed to again assess the "current market rent" for the premises for the period 1 July 2009 to 30 June 2011 (referred to below within this decision as "the relevant period"). The Tribunal then appointed Mr Lance Kenny to undertake this valuation ("the Kenny valuation"). 5By reason of the Kenny valuation, it transpired that the Applicants had paid a total amount for rent far in excess of what they should have paid over the relevant period. 6The Kenny valuation was completed on 15 October 2013. On 7 November 2013, the Respondents paid the sum of $81,884.15 to the Applicants which was the amount assessed by them, based upon the Kenny valuation, to be the due amount of overpayment of rent which was repayable. 7The Respondents subsequently gave their consent to the presence of the ATM at the premises. 8On 7 November 2013 the parties advised the Tribunal that the only remaining issues between them were the orders for costs and interest sought by the Applicants. 9The Respondents contend that the parties should each bear their own respective costs given the circumstances surrounding this matter, and that there should be no order for payment of interest. 10Consideration of the evidence and submissions establishes the following outline of facts and events.