Fresko Café Pty Ltd v Bassil [2009] NSWADT 77

Fresko Café Pty Ltd v Bassil [2009] NSWADT 77

The lessee's claims failed because, although the lessor's disclosure statement was incomplete by not disclosing the particular imminence of Council-required works, the lessee otherwise had substantial knowledge of the works and front-area restrictions, no false or misleading representation, misleading or deceptive conduct, unconscionable conduct, compensable s34 breach, key-money issue, or recoverable loss was established. The lessee terminated or surrendered the lease, but unpaid rent remained and the lessor was entitled to the security bond.

Jurisdiction
Australia
Judgment Date
09 April 2009
Procedural Posture
Combined Retail Tenancy Claim and Unconscionable Conduct Claim, Heard With Rental Bond Claim / Final Decision After Hearing
Outcome
Application in proceedings 085067 dismissed; declaration made in proceedings 085128 that the lessor is entitled to the security bond balance.
Legal Topics
['false or Misleading Representation' "lessor's Disclosure Statement" 'termination of Lease' 'notice of Alteration of Building' 'security Bond' 'unconscionable Conduct' 'compensation']
['retail Leases' 'administrative Law'] ['false or Misleading Representation' "lessor's Disclosure Statement" 'termination of Lease' 'notice of Alteration of Building' 'security Bond' 'unconscionable Conduct' 'compensation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Combined Retail Tenancy Claim and Unconscionable Conduct Claim, Heard With Rental Bond Claim / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the lease was entered into as a result of a false or misleading representation by or on behalf of the lessor under s10(1) of the Retail Leases Act 1994.' "Whether the lessor's disclosure statement was incomplete or misleading so as to permit termination under s11(2) of the Retail Leases Act 1994." "Whether the lessor failed to give two months' written notice of alteration of the building likely to adversely affect the lessee's business under s33 of the Retail Leases Act 1994." 'Whether the lessee was entitled to compensation under s34 of the Retail Leases Act 1994.' 'Whether the lessor engaged in unconscionable conduct under s62B of the Retail Leases Act 1994 or misleading or deceptive conduct under s62D.' 'Whether the lessor was entitled to payment of the security bond.']

Ratio Decidendi

The lessee's claims failed because, although the lessor's disclosure statement was incomplete by not disclosing the particular imminence of Council-required works, the lessee otherwise had substantial knowledge of the works and front-area restrictions, no false or misleading representation, misleading or deceptive conduct, unconscionable conduct, compensable s34 breach, key-money issue, or recoverable loss was established. The lessee terminated or surrendered the lease, but unpaid rent remained and the lessor was entitled to the security bond.

Court Disposition

Application in proceedings 085067 dismissed; declaration made in proceedings 085128 that the lessor is entitled to the security bond balance.

Orders

  • ['085067 Application dismissed' '085128 Declare that the lessor is entitled to be paid the current balance in respect of the security bond under the lease, namely, bond number 0446107-4.']