Kim v Kim [2012] NSWADT 27

Kim v Kim [2012] NSWADT 27

The lease was a retail shop lease because the premises were predominantly used as a karaoke bar, being amusement and entertainment services. The Respondents' solicitors' letters did not constitute a notice compliant with s 129 of the Conveyancing Act 1919, and the alleged breaches did not amount to repudiation by the Applicant. The Respondents therefore were not entitled to re-enter, and their lockout and termination amounted to wrongful repudiation accepted by the Applicant, entitling him to return of the bond and damages. The Respondents were limited to accrued claims for proved pre-termination breaches and were awarded a modest amount for repair and restoration work.

Jurisdiction
Australia
Judgment Date
21 February 2012
Procedural Posture
Retail Lease Dispute in the Retail Leases Division / Principal Judgment After Hearing
Outcome
Declaration and orders made; Applicant succeeded on retail lease status, wrongful repudiation and bond return; Respondents succeeded in part on accrued repair/restoration damages; provisional no order as to costs subject to submissions.
Legal Topics
['retail Shop Lease' 'karaoke Premises' 'forfeiture of Lease' 'notice Under S 129 Conveyancing Act 1919' 'wrongful Repudiation' 'damages' 'security Bond' 'unconscionable Conduct']
['retail Leases' 'property Law' 'contract Law'] ['retail Shop Lease' 'karaoke Premises' 'forfeiture of Lease' 'notice Under S 129 Conveyancing Act 1919' 'wrongful Repudiation' 'damages' 'security Bond' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Retail Lease Dispute in the Retail Leases Division / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the lease registered AF 527342E was a retail shop lease within the Retail Leases Act 1994.' 'Whether the premises were used predominantly for amusement and entertainment services or for sale of alcohol.' 'Whether the Respondents validly terminated the lease and re-entered the premises without a notice complying with s 129 of the Conveyancing Act 1919.' 'Whether the alleged breaches amounted to repudiation by the Applicant.' 'What damages or other relief each side was entitled to receive.' 'Whether the evidence established unconscionable conduct within the meaning of the Retail Leases Act 1994.']

Ratio Decidendi

The lease was a retail shop lease because the premises were predominantly used as a karaoke bar, being amusement and entertainment services. The Respondents' solicitors' letters did not constitute a notice compliant with s 129 of the Conveyancing Act 1919, and the alleged breaches did not amount to repudiation by the Applicant. The Respondents therefore were not entitled to re-enter, and their lockout and termination amounted to wrongful repudiation accepted by the Applicant, entitling him to return of the bond and damages. The Respondents were limited to accrued claims for proved pre-termination breaches and were awarded a modest amount for repair and restoration work.

Court Disposition

Declaration and orders made; Applicant succeeded on retail lease status, wrongful repudiation and bond return; Respondents succeeded in part on accrued repair/restoration damages; provisional no order as to costs subject to submissions.

Orders

  • ['Declaration that the lease registered AF 527342E is a retail shop lease within the Retail Leases Act 1994.' 'Order that Young Pil Kim, Kyung Suk Kim and and Paul Mercedes refund or procure the refund to Kwang Sun Kim of the bond of $46,800 paid under the said lease.' 'Order that Young Pil Kim, Kyung Suk Kim and...