Alexander James Pty Ltd v Pozetu Pty Ltd [2015] NSWCATAP 228

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alexander James Pty Ltd v Pozetu Pty Ltd [2015] NSWCATAP 228 Hearing dates: 24 August 2015, 7 and 15 September 2015 (written submissions) Date of orders: 21 October 2015 Decision date: 21 October 2015 Jurisdiction: Appeal Panel Before: F Marks ADCJ, Principal Member S Thode, Senior Member Decision: 1. The appeal is allowed. 2. The order of the Tribunal for the payment of monies by the appellants to the respondent is quashed. 3. Liberty to apply to any party with respect to costs which must be exercised within one month of this date. Catchwords: Retail lease - option for renewal exercised – held no option lease created- equitable lease must be amenable to specific performance - held no equitable lease – tenancy determined by giving one month's notice – duty of fidelity not applicable-no compensation payable by lessee and guarantors-appeal allowed. Legislation Cited: Retail Leases Act, 1994, s18 Conveyancing Act, 1919, s127 Real Property Act, 1900, ss 41, 53 Civil and Administrative Tribunal Act, 2013, ss 60, 80, 81, clause 12 of Schedule 4 Cases Cited: Ashington Holdings Pty Ltd v Wipema Services Pty Ltd [1999] NSWCA 456 Trentino Nominees Pty Ltd v Vlattas [1973] HCA 14 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Chan v Cresdon Pty Ltd [1989] HCA 63 Sudbrook Trading Estate Ltd v Eggleton [1983] AC 444 United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSW CA 177. Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 Alcatel Australia Ltd v Scarcella (1998) 44 NSW LR 349 Ruthol Pty Ltd v Mills [2003] NSWCA 56 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Alexander James Pty Ltd (1st Appellant) Christopher Dedman (2nd Appellant) Christopher Hancock (3rd Appellant) Anthony Maxworthy (4th Appellant) Pozetu Pty Ltd (Respondent) Representation: Counsel: M. Southwick (1st, 3rd and 4th Appellants) N. Allan (2nd Appellant) R. Francois (Respondent)