Anka (Civic Center) Pty Ltd v Sahyoun [2014] NSWSC 17

Supreme Court New South Wales

Medium Neutral Citation: Anka (Civic Center) Pty Ltd v Sahyoun [2014] NSWSC 17 Hearing dates: 30 and 31 January 2014 Decision date: 04 February 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Order the defendant to deliver up possession to the plaintiff of the property at Lot A/418801, part being a pharmacy including office and store known as 23 Lindfield Avenue, Lindfield ("the Premises") and comply with clause 12.3 of Registered Lease No AF715396G ("the Lease") by 2:00pm on 7 February 2014. 2. Order the defendant to pay to the plaintiff $5,866.23 as mesne profits for the defendant's occupation of the Premises for the period from 15 January 2014 until 7 February 2014. 3. Dismiss: a) the defendant's cross claim/cross summons filed in Court on 30 January 2014; b) the defendant's motion to transfer the proceedings to the NSW Civil and Administrative Tribunal filed in Court on 17 January 2014. 4. Order the defendant to pay the plaintiff's costs of these proceedings, including the following costs: a) the defendant's cross claim/cross summons filed in Court on 30 January 2014; b) the defendant's motion to transfer the proceedings to the NSW Civil and Administrative Tribunal filed in Court on 17 January 2014. 5. The question of whether the plaintiff can enforce the defendant's undertaking as to damages is stood over to 18 March 2014 at 9:00am before the Registrar in Equity. 6. Order the defendant to pay the plaintiff's costs on the ordinary basis. Catchwords: LANDLORD AND TENANT - notice to vacate - landlord seeks possession - tenant files proceedings in the Civil and Administrative Tribunal under Retail Leases Act 1994 - whether Court satisfied that mediation under Part 8 of the Retail Leases Act would be unlikely to be successful - whether proceedings should be transferred to the Civil and Administrative Tribunal - whether agreement to extend notice period - claim that notice period was unconscionable - Retail Leases Act, section 44 - whether statutory extension of lease - whether s 129 of the Conveyancing Act 1919 operates upon landlord's claim - relief - costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Conveyancing Act 1919 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: - Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 - Easy Buy International Pty Ltd v Macquarie Goodman Property Services Pty Ltd [2006] NSWSC 148 - Fordham Laboratories Pty Ltd v Sor [2011] NSWSC 706; 81 NSWLR 383 - Melacare International Ltd v Daley Investments Pty Ltd [1999] NSWSC 496 Category: Interlocutory applications Parties: Anka (Civic Center) Pty Ltd (Plaintiff) Monique Antoinette Sahyoun (Defendant) Representation: Counsel: C. Mobellan (Plaintiff) P. Biber (Sol) (Defendant) Solicitors: Raj Lawyers (Plaintiff) David Landa Stewart Lawyers (Defendant) File Number(s): 2014/013852