Mutlu v Cetinkaya [2011]NSWADT 180

Mutlu v Cetinkaya [2011]NSWADT 180

The Licence Agreement gave Mutlu a right to occupy retail shop premises for value for a 10 month period and therefore fell within the definition of a retail shop lease. Because there was no s16(3) certificate, s16 applied. Mutlu was found on the balance of probabilities to have been aware of the hearing and to have elected not to attend, so Application 105001 was dismissed for want of prosecution and Application 115068 proceeded ex parte. The evidence established that Mutlu abandoned the premises on 3 October 2010, that a new tenant took occupation on 24 November 2010, and that $9,298.88 was outstanding by way of rental arrears and damages, with interest of $475.00.

Jurisdiction
Australia
Judgment Date
28 July 2011
Procedural Posture
Retail Leases Division Applications Concerning Occupation of Retail Shop Premises / Final Decision After Mutlu Did Not Appear; Application 115068 Proceeded Ex Parte
Outcome
Application 105001 dismissed for want of prosecution; interim order for possession vacated; declaration that the retail lease ended on 3 October 2010; in Application 115068, Cetinkaya awarded debt and damages of $9,298.88 and interest of $475.00; no order for costs.
Legal Topics
['definition of Retail Shop Lease' 'minimum 5 Year Term' 'want of Prosecution' 'ex Parte Hearing' 'rental Arrears and Damages' 'interest on Arrears' 'abandonment of Premises']
['retail Leases' 'administrative Tribunal Procedure'] ['definition of Retail Shop Lease' 'minimum 5 Year Term' 'want of Prosecution' 'ex Parte Hearing' 'rental Arrears and Damages' 'interest on Arrears' 'abandonment of Premises']

Case Brief

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Procedural Posture

Retail Leases Division Applications Concerning Occupation of Retail Shop Premises / Final Decision After Mutlu Did Not Appear; Application 115068 Proceeded Ex Parte

Legal Issues

  1. 1 ['Whether the Licence Agreement for occupation of the pizza and kebab shop was a retail shop lease under the Retail Leases Act.' 'Whether s16 of the Retail Leases Act imposed or extended the arrangement to a 5 year lease in the absence of a s16(3) certificate.' 'Whether Application 105001 should be dismissed for want of prosecution when Mutlu did not attend the hearing.' 'Whether Application 115068 should proceed ex parte and whether Cetinkaya was entitled to arrears, damages and interest.' 'Whether the lease or right of occupation ended when Mutlu abandoned the premises on 3 October 2010.']

Ratio Decidendi

The Licence Agreement gave Mutlu a right to occupy retail shop premises for value for a 10 month period and therefore fell within the definition of a retail shop lease. Because there was no s16(3) certificate, s16 applied. Mutlu was found on the balance of probabilities to have been aware of the hearing and to have elected not to attend, so Application 105001 was dismissed for want of prosecution and Application 115068 proceeded ex parte. The evidence established that Mutlu abandoned the premises on 3 October 2010, that a new tenant took occupation on 24 November 2010, and that $9,298.88 was outstanding by way of rental arrears and damages, with interest of $475.00.

Court Disposition

Application 105001 dismissed for want of prosecution; interim order for possession vacated; declaration that the retail lease ended on 3 October 2010; in Application 115068, Cetinkaya awarded debt and damages of $9,298.88 and interest of $475.00; no order for costs.

Orders

  • ['Application 105001 dismissed for want of prosecution.' 'Interim Order for possession vacated.' 'Declare that retail lease arising out of Licence Agreement dated July 2009 for the occupation of shop premises in Boorowa Street, Young ended on 3 October 2010 when the Applicant Mutlu ceased occupation.' 'No order for...