Snowpave Pty Ltd v Gibo Pty Ltd and Edite Pty Ltd (No 2) [2011] NSWADT 25

Snowpave Pty Ltd v Gibo Pty Ltd and Edite Pty Ltd (No 2) [2011] NSWADT 25

The Tribunal accepted that, for calculation of the contribution under clause 20.4, the proportion payable should be derived from the area occupied by the relevant tenancy (SMJR) as a proportion of the total area of the Lot, rather than only the areas actually occupied by lessees. This results in a contribution of 18.5% of $115,055.60, being $21,306.50. Costs were not ordered against the losing party as neither party's conduct displaced the presumption in s.88(1) of the ADT Act that each party bear its own costs.

Jurisdiction
Australia
Judgment Date
08 February 2011
Procedural Posture
Retail Lease Dispute / Consequential Orders Following Substantive Decision
Outcome
Orders made for payment of calculated sum and interest; release of controlled funds on payment; each party to bear own costs.
Legal Topics
['damages' 'costs' 'lease Interpretation' 'contributions to Works' 'implied Terms']
['commercial Law' 'retail Leases'] ['damages' 'costs' 'lease Interpretation' 'contributions to Works' 'implied Terms']

Case Brief

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Procedural Posture

Retail Lease Dispute / Consequential Orders Following Substantive Decision

Legal Issues

  1. 1 ["Proper calculation of lessee's contribution for installation and maintenance costs under lease clause 20.4" 'Entitlement to claim costs by the applicant' 'Whether each party should bear its own costs']

Ratio Decidendi

The Tribunal accepted that, for calculation of the contribution under clause 20.4, the proportion payable should be derived from the area occupied by the relevant tenancy (SMJR) as a proportion of the total area of the Lot, rather than only the areas actually occupied by lessees. This results in a contribution of 18.5% of $115,055.60, being $21,306.50. Costs were not ordered against the losing party as neither party's conduct displaced the presumption in s.88(1) of the ADT Act that each party bear its own costs.

Court Disposition

Orders made for payment of calculated sum and interest; release of controlled funds on payment; each party to bear own costs.

Orders

  • ['Respondent to pay the Applicant the sum of $21,306.50.' 'Respondent to pay the Applicant interest calculated at the rate applicable under section 72A of the Retail Leases Act 1994 (NSW) from 12 June 2008.' 'Upon payment of the amounts ordered, moneys in the jointly controlled account to be released forthwith to...