Botts -v- Grimme (RLD) [2001] NSWADTAP 15

Botts -v- Grimme (RLD) [2001] NSWADTAP 15

The appeal failed because no question of law requiring appellate intervention was established. Even if the appellant had validly exercised the 1994 option because no s 133E notice was served, the Tribunal's separate and unchallenged finding that a new lease was created by later offer and acceptance meant the s 133E point would not determine the operative lease. The challenge to rent arrears could not succeed because the appellant conceded arrears existed and did not meet the threshold for reopening fact-finding. The conclusion that the premises fell within the Retail Leases Act 1994 was open on the facts, including that the residential rooms had no practical separate access and the...

Jurisdiction
Australia
Judgment Date
30 May 2001
Procedural Posture
Retail Leases Act 1994 Dispute / Appeal From the Retail Leases Division Decision
Outcome
Orders under appeal affirmed as amended by agreement of the parties.
Legal Topics
['appeal on Question of Law' 'retail Shop Lease' 'exercise of Option to Renew' 'rent Arrears' 'conveyancing Act Notice' 'mixed Retail and Residential Premises' 'tribunal Jurisdiction']
['administrative Law' 'retail Leasing' 'property Law'] ['appeal on Question of Law' 'retail Shop Lease' 'exercise of Option to Renew' 'rent Arrears' 'conveyancing Act Notice' 'mixed Retail and Residential Premises' 'tribunal Jurisdiction']

Case Brief

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Procedural Posture

Retail Leases Act 1994 Dispute / Appeal From the Retail Leases Division Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred in its application of s 133E of the Conveyancing Act 1919 to the appellant's purported exercise of the option under the 1994 lease." 'Whether the Tribunal erred in concluding that the whole of the premises, including upstairs residential rooms, was governed by the Retail Leases Act 1994.' 'Whether any challenge to findings of fact, including the amount of rent arrears, could be entertained on the appeal.']

Ratio Decidendi

The appeal failed because no question of law requiring appellate intervention was established. Even if the appellant had validly exercised the 1994 option because no s 133E notice was served, the Tribunal's separate and unchallenged finding that a new lease was created by later offer and acceptance meant the s 133E point would not determine the operative lease. The challenge to rent arrears could not succeed because the appellant conceded arrears existed and did not meet the threshold for reopening fact-finding. The conclusion that the premises fell within the Retail Leases Act 1994 was open on the facts, including that the residential rooms had no practical separate access and the...

Court Disposition

Orders under appeal affirmed as amended by agreement of the parties.

Orders

  • ['By agreement of the parties, the Appeal Panel directs that the orders made by the Tribunal below be amended as set out in para [10] of these reasons.' 'As to the terms of the Law Society Lease referred to in Order 1, delete clause 10.7 from that Lease and substitute cl 38(b) of the 1994 Lease between the parties,...