Vuong v Ladikos [2011] NSWADT 104

Vuong v Ladikos [2011] NSWADT 104

Taking the applicant's evidence at its highest, the respondents' silence in failing to provide a substantial reply to the applicant's 1 October 2010 letter was capable of falling within s 62B(3)(i) and s 62B(3)(k) of the Retail Leases Act 1994 and of constituting unconscionable conduct under s 62B(2). The applicant's claim was therefore not so obviously untenable that it was bound to fail, so summary dismissal was refused.

Jurisdiction
Australia
Judgment Date
17 May 2011
Procedural Posture
Retail Lease Unconscionable Conduct Claim / Respondents' Interlocutory Application for Summary Dismissal
Outcome
Respondents' application for summary dismissal dismissed; no order as to costs; matter listed for directions.
Legal Topics
['summary Dismissal' 'unconscionable Conduct' 'exercise of Lease Option' 'silence or Failure to Disclose' 'good Faith']
['administrative Law' 'retail Leases' 'equity'] ['summary Dismissal' 'unconscionable Conduct' 'exercise of Lease Option' 'silence or Failure to Disclose' 'good Faith']

Case Brief

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Procedural Posture

Retail Lease Unconscionable Conduct Claim / Respondents' Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether the proceedings should be summarily dismissed as frivolous or vexatious or otherwise misconceived or lacking in substance under the Administrative Decisions Tribunal Act 1997.' "Whether, taking the applicant's evidence at its highest, there was a triable issue that the respondents' silence or failure to promptly notify the applicant that the option had not been lawfully exercised was unconscionable conduct under s 62B of the Retail Leases Act 1994."]

Ratio Decidendi

Taking the applicant's evidence at its highest, the respondents' silence in failing to provide a substantial reply to the applicant's 1 October 2010 letter was capable of falling within s 62B(3)(i) and s 62B(3)(k) of the Retail Leases Act 1994 and of constituting unconscionable conduct under s 62B(2). The applicant's claim was therefore not so obviously untenable that it was bound to fail, so summary dismissal was refused.

Court Disposition

Respondents' application for summary dismissal dismissed; no order as to costs; matter listed for directions.

Orders

  • ['Application for summary dismissal pursuant to s 72 of the Administrative Decisions Tribunal Act 1997 dismissed.' 'No order as to costs of proceedings on 1 April 2011.' 'Case listed for Directions on 9 June 2011 at 10.00am.']