AWPF Management Pty Ltd v Red Roll Pty Ltd & Ors (RLD) [2009] NSWADTAP 3

AWPF Management Pty Ltd v Red Roll Pty Ltd & Ors (RLD) [2009] NSWADTAP 3

Liability to compensate for pre-lease misrepresentation under s 10(1) of the Retail Leases Act 1994 is limited to the party who made the representation or under whose authority it was made. The statutory definitions in s 3 do not extend such liability to assignees who were not privy to, or aware of, the misrepresentation at assignment. The Tribunal erred in finding otherwise and construing 'party' more broadly for the purposes of s 10(1).

Jurisdiction
Australia
Judgment Date
23 January 2009
Procedural Posture
Appeal / Decision on Appeal
Outcome
appeal allowed in part
Legal Topics
['retail Leases' 'statutory Interpretation' 'pre Lease Misrepresentation' 'liability of Assignees']
['commercial Law' 'property Law'] ['retail Leases' 'statutory Interpretation' 'pre Lease Misrepresentation' 'liability of Assignees']

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ["Does liability for pre-lease misrepresentations under s 10(1) of the Retail Leases Act 1994 extend to assignees of the lessor's interest?" 'Should an assignee be liable for compensation for misrepresentation made by the assignor prior to assignment?' "Is the statutory definition of 'party' in the RL Act to be applied literally in s 10(1)?"]

Ratio Decidendi

Liability to compensate for pre-lease misrepresentation under s 10(1) of the Retail Leases Act 1994 is limited to the party who made the representation or under whose authority it was made. The statutory definitions in s 3 do not extend such liability to assignees who were not privy to, or aware of, the misrepresentation at assignment. The Tribunal erred in finding otherwise and construing 'party' more broadly for the purposes of s 10(1).

Court Disposition

appeal allowed in part

Orders

  • ['Leave to appeal is granted' 'The appeal is allowed in part' 'The orders made by the Tribunal on 21 July 2008 are set aside' 'In so far as these Tribunal proceedings comprise retail tenancy claims by the First Respondent to the Appeal against the Appellant and the Third Respondent, alleging liability on their part...