Campbell v Astill; Astill v Campbell [2004] NSWADT 277

Campbell v Astill; Astill v Campbell [2004] NSWADT 277

The lessor's conduct, including rent review, refusing to enter a new lease, and related communications, did not amount to unconscionable conduct under s.62B of the Retail Leases Act 1994, even taking the lessee's evidence at its highest. The lessor was entitled to possession and costs; the lessee's cross-application was dismissed.

Parties
Applicant/cross Respondent (lessor): Elizabeth Campbell; Respondent/cross Applicant (lessee): Bernadette Astill
Jurisdiction
Australia
Judgment Date
02 December 2004
Procedural Posture
Application and Cross Claim Under the Retail Leases Act 1994 / Decision After Hearing in the Retail Leases Division of the NSW Administrative Decisions Tribunal
Outcome
Application by lessor granted; cross-application by lessee dismissed.
Legal Topics
Retail Leases, Unconscionable Conduct, Forfeiture of Lease, Possession Proceedings, Costs Orders
Property Law Commercial Law Retail Leases Unconscionable Conduct Forfeiture of Lease Possession Proceedings Costs Orders

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Parties

Elizabeth Campbell

Applicant/cross Respondent (lessor)

Bernadette Astill

Respondent/cross Applicant (lessee)

Procedural Posture

Application and Cross Claim Under the Retail Leases Act 1994 / Decision After Hearing in the Retail Leases Division of the NSW Administrative Decisions Tribunal

Legal Issues

  1. 1 Whether the lessor (Mrs Campbell) engaged in unconscionable conduct under s.62B of the Retail Leases Act 1994
  2. 2 Whether the lessee (Mrs Astill) was entitled to resist surrender of possession due to unconscionability
  3. 3 Whether the lessor is entitled to an order for possession of the premises and costs

Ratio Decidendi

The lessor's conduct, including rent review, refusing to enter a new lease, and related communications, did not amount to unconscionable conduct under s.62B of the Retail Leases Act 1994, even taking the lessee's evidence at its highest. The lessor was entitled to possession and costs; the lessee's cross-application was dismissed.

Court Disposition

Application by lessor granted; cross-application by lessee dismissed.

Orders

  • Application 045091 dismissed.
  • In Application 045081, the Lessee to surrender possession of the premises Shop 4/22 Darley Road, Manly on or before 5 December 2004.