Vuong v Savic [2015] NSWCATCD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vuong v Savic [2015] NSWCATCD 96 Hearing dates: 4 August 2015 Decision date: 25 September 2015 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1 The application is dismissed. 2 No order as to costs. Catchwords: Exercise of option to renew, unconscionable conduct s62B and claim pursuant to ss71-71A of the Retail Leases Act, 1994 Legislation Cited: Retail Leases Act, 1994 Trade Practices Act 1974 (Cth) Cases Cited: ACCC v Dukemaster Pty Ltd [2009] FCA 682 Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 Awad v Bucasia Pty Ltd [2003] NSWADT 247 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSW SC459 Ramensky v Demagogue Pty Ltd (1992) BC9203501 (1992) (unreported) Sarker v World Best Holdings Ltd [2004] NSWADT 15 Yao & Anor v Cambooya Properties Pty Ltd [2004] NSW ADT 55 Category: Principal judgment Parties: Kien Thanh Vuong (applicant) Olga Savic as attorney for Elizabeth Savic (respondent) Representation: Self (applicant) Self (respondent) File Number(s): COM 15/40967 Publication restriction: Nil

REASONS FOR DECISION 1. Kien Thanh Vuong (the Applicant) is the lessee under a lease for a term of two years expiring on 30 June 2014 (the Lease) from Elizabeth Savic (the Lessor) of a shop in a building at [***] Road, Canley Heights (the building). The Applicant operates a butcher shop (the shop). 2. The Lease is in the form of the Law Society Commercial Lease. Pursuant to the Lease, the Applicant had an option for a further two years (the Option). The Option is to be exercised by the lessee in writing between 1 January 2014 and 31 March 2014. 3. The Applicant did not exercise the Option in writing. Subsequently the Applicant was issued with a Notice to Quit requiring the Applicant to vacate the shop by 31 October 2014. 4. The lawyers for the Lessor then wrote to the Applicant on 16 December 2014 and advised the Applicant that the Lessor would allow the Applicant to hold over as a monthly tenant until 30 June 2015 when vacant possession was required. 5. On 30 June 2015, the Applicant lodged an application for an Original Decision naming Ms Olga Savic as the Respondent (Ms Olga Savic). The Application is a combined Retail Tenancy Claim and an Unconscionable Conduct Claim pursuant to ss 71 and 71A of the Retail Leases Act 1994 (RLA). 6. The matter was listed for directions hearing on 21 July 2015. The Applicant was not at that hearing because the Applicant misunderstood the notice from the Registry. The Applicant required the assistance of a translator who had been booked to attend the hearing and accordingly was present. The Applicant was contacted by telephone and participated in the directions hearing through the translator. 7. I determined upon enquiry of the parties that mediation under s68 of the RLA would be futile. I set the matter down for hearing at the next appropriate hearing date on 4 August 2015.