Fagerlund and Atkinson v PPS Nominees Pty Ltd [2011] NSWADT 24

Fagerlund and Atkinson v PPS Nominees Pty Ltd [2011] NSWADT 24

The Tribunal found that no clear or unambiguous representation was made to Applicants as alleged and, even if there were, Applicants did not rely on such representations; the Respondent did not act unconscionably in negotiations nor was there a causal link between alleged conduct and the business's failure; Applicants' claims for damages and compensation fail, while Respondent is entitled to damages for lease breaches including arrears, making good costs, and repayment of fit out contribution.

Jurisdiction
Australia
Judgment Date
03 February 2011
Procedural Posture
Principal Judgment / Final Determination (judgment After Hearing)
Outcome
Application dismissed; cross application allowed in part.
Legal Topics
['misleading and Deceptive Conduct' 'unconscionable Conduct' 'retail Leasing' 'lease Termination' 'damages']
['commercial Law' 'property Law'] ['misleading and Deceptive Conduct' 'unconscionable Conduct' 'retail Leasing' 'lease Termination' 'damages']

Case Brief

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Procedural Posture

Principal Judgment / Final Determination (judgment After Hearing)

Legal Issues

  1. 1 ['Whether the Respondent engaged in misleading or deceptive conduct in connection with the lease of Shop 62' 'Whether the Respondent acted unconscionably under section 62B of the Retail Leases Act 1994' 'Entitlement to compensation for late shop handover' 'Whether the Respondent is entitled to damages for breach of lease']

Ratio Decidendi

The Tribunal found that no clear or unambiguous representation was made to Applicants as alleged and, even if there were, Applicants did not rely on such representations; the Respondent did not act unconscionably in negotiations nor was there a causal link between alleged conduct and the business's failure; Applicants' claims for damages and compensation fail, while Respondent is entitled to damages for lease breaches including arrears, making good costs, and repayment of fit out contribution.

Court Disposition

Application dismissed; cross application allowed in part.

Orders

  • ['Application dismissed.' 'Cross Application allowed in part. The Cross Respondents will pay the Cross Applicant the sum of $58,830.90, calculated as $23,046.85, $13,784.10, and $22,000.00.' 'The Cross Applicant is entitled to interest on $58,830.90 at the prescribed rate from 28 July 2008.' 'Each party to pay its...