Smith trading as Flames Grill & Carvery v Trust Company of Australia Ltd [2008] NSWADT 10

Smith trading as Flames Grill & Carvery v Trust Company of Australia Ltd [2008] NSWADT 10

Trust Co’s conduct in terminating the lease and refusing to accept partial payment or negotiate new partners did not reach the threshold of unconscionable conduct under the Retail Leases Act; assignment requirements were not met, justifying continued treatment of both assignees as lessees; Ms Smith is liable to pay arrears, damages for lost rent, and make good costs, less the co-assignee’s settlement payment; contractual indemnity for litigation costs overridden as inconsistent with the statutory costs regime; other claimed costs, interest, and appropriations subject to further submissions.

Parties
Applicant/cross Respondent: Jennifer Smith trading as Flames Grill & Carvery; Respondent/cross Applicant: Trust Company of Australia Ltd
Jurisdiction
Australia
Judgment Date
07 January 2008
Procedural Posture
Retail Lease Dispute / Principal Matter; Orders on Substantive Issues, Further Submissions Ordered
Outcome
Applicant's claim for unconscionable conduct dismissed; orders for payment of arrears, damages, and make good costs; directions for further submissions on remaining claims.
Legal Topics
Retail Leases, Unconscionable Conduct, Relief Against Forfeiture, Damages, Costs
Commercial Law Property Law Retail Leases Unconscionable Conduct Relief Against Forfeiture Damages Costs

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Parties

Jennifer Smith trading as Flames Grill & Carvery

Applicant/cross Respondent

Trust Company of Australia Ltd

Respondent/cross Applicant

Procedural Posture

Retail Lease Dispute / Principal Matter; Orders on Substantive Issues, Further Submissions Ordered

Legal Issues

  1. 1 Whether the termination and repossession of lease premises by the lessor constituted unconscionable conduct
  2. 2 Whether the lessor owed duties to facilitate lease assignment or partner change
  3. 3 Liability for arrears, damages and make good costs

Ratio Decidendi

Trust Co’s conduct in terminating the lease and refusing to accept partial payment or negotiate new partners did not reach the threshold of unconscionable conduct under the Retail Leases Act; assignment requirements were not met, justifying continued treatment of both assignees as lessees; Ms Smith is liable to pay arrears, damages for lost rent, and make good costs, less the co-assignee’s settlement payment; contractual indemnity for litigation costs overridden as inconsistent with the statutory costs regime; other claimed costs, interest, and appropriations subject to further submissions.

Court Disposition

Applicant's claim for unconscionable conduct dismissed; orders for payment of arrears, damages, and make good costs; directions for further submissions on remaining claims.

Orders

  • Applicant/Cross Respondent to pay $31,367.81 to Respondent/Cross Applicant, without prejudice to further orders.
  • Directions for filing of evidence and submissions on indemnity costs, interest, and payment appropriations (per [115]-[117] of reasons).