Simonek Pty Ltd v Moon [2008] NSWADT 128

Simonek Pty Ltd v Moon [2008] NSWADT 128

The Tribunal was not satisfied on the balance of probabilities that the lease signed by the Lessee contained the rent increase provision or that the Lessee entered the premises intending to be bound by the later version of special condition 50. The lease was therefore for three years commencing 1 November 2006 at a fixed rental of $4,290.00 per month. On that basis the outstanding rent and occupation fee, after allowing for the bond, was $49,392.71, with interest of $2,305.00 and continuing liability for occupation while the Lessee's goods remained on the premises.

Jurisdiction
Australia
Judgment Date
01 May 2008
Procedural Posture
Retail Lease Dispute Concerning Rent Arrears, Occupation Fees, Bond, Interest and Costs / Principal Matter; Decision After Earlier Possession Order
Outcome
Application allowed in part; Respondent Lessee ordered to pay debt, interest, continuing occupation fee and costs, and Applicant Lessor entitled to receive the security bond.
Legal Topics
['arrears of Rent' 'occupation Fee' 'security Bond' 'interest' 'costs' 'forfeiture']
['retail Leases' 'civil Procedure'] ['arrears of Rent' 'occupation Fee' 'security Bond' 'interest' 'costs' 'forfeiture']

Case Brief

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Procedural Posture

Retail Lease Dispute Concerning Rent Arrears, Occupation Fees, Bond, Interest and Costs / Principal Matter; Decision After Earlier Possession Order

Legal Issues

  1. 1 ['Whether the Applicant Lessor had established the amount of rent arrears owed by the Respondent Lessee.' 'Whether the lease included an enforceable rent increase provision for the period after 1 December 2007.' 'Whether the Applicant Lessor was entitled to an occupation fee after termination of the lease.' 'Whether the Applicant Lessor was entitled to receive the security bond.' 'Whether interest should be awarded on the arrears and occupation fee.' 'Whether costs should be ordered for the hearing on 3 April 2008.']

Ratio Decidendi

The Tribunal was not satisfied on the balance of probabilities that the lease signed by the Lessee contained the rent increase provision or that the Lessee entered the premises intending to be bound by the later version of special condition 50. The lease was therefore for three years commencing 1 November 2006 at a fixed rental of $4,290.00 per month. On that basis the outstanding rent and occupation fee, after allowing for the bond, was $49,392.71, with interest of $2,305.00 and continuing liability for occupation while the Lessee's goods remained on the premises.

Court Disposition

Application allowed in part; Respondent Lessee ordered to pay debt, interest, continuing occupation fee and costs, and Applicant Lessor entitled to receive the security bond.

Orders

  • ['Pursuant to section 72(a)(1) of the Retail Leases Act 1994 Respondent Lessee to pay to Applicant Lessor the sum of $49,392.71 by way of debt.' 'Pursuant to section 72(a)(1) of the Retail Leases Act 1994 Respondent Lessee to pay to Applicant Lessor the sum of $2,305.00 by way of interest.' 'Pursuant to section...