Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36

Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36

Although a section 16 certificate showed that the Lease had a one-year term, the lessors' liability did not depend on a five-year lease. The parties' oral arrangements included an implied term that the lessee could remain in Shop 31 for the limited time needed to move its goods directly to Shop 67 if Shop 67 was not available through no fault of the lessee. The lessors prevented access, removed the goods, claimed possession and therefore were bailees obliged to take reasonable care. Clause 11 and its indemnity did not excuse liability. The lessors failed to prove that damage was not caused by their agents' lack of reasonable care. The Tribunal erred in excluding the video evidence and in...

Jurisdiction
Australia
Judgment Date
17 August 2011
Procedural Posture
Retail Shop Lease Dispute / Internal Appeal to Appeal Panel From Retail Leases Division Decision
Outcome
Appeal allowed in part.
Legal Topics
['retail Shop Lease' 'lockout of Lessee' "removal of Tenant's Goods" 'bailment' 'surveillance Device Evidence' 'assessment of Damages']
['retail Leases' 'property Law' 'evidence' 'damages'] ['retail Shop Lease' 'lockout of Lessee' "removal of Tenant's Goods" 'bailment' 'surveillance Device Evidence' 'assessment of Damages']

Case Brief

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Procedural Posture

Retail Shop Lease Dispute / Internal Appeal to Appeal Panel From Retail Leases Division Decision

Legal Issues

  1. 1 ['Whether the lessors had grounds under the lease to exclude the lessee from Shop 31 when the lessee had not completed removal of its stock and goods.' "Whether the lessors were liable as bailees for economic loss, including damage to the lessee's goods, caused by moving the goods from Shop 31 to Shop 67." "Whether clause 11 of the Lease or its indemnity provisions protected the lessors from liability for the removal and storage of the lessee's goods." 'Whether video recordings of inspections in Shop 67 were inadmissible because of the Surveillance Devices Act 2007.' "How the lessee's damages for removed, damaged or detained goods should be quantified."]

Ratio Decidendi

Although a section 16 certificate showed that the Lease had a one-year term, the lessors' liability did not depend on a five-year lease. The parties' oral arrangements included an implied term that the lessee could remain in Shop 31 for the limited time needed to move its goods directly to Shop 67 if Shop 67 was not available through no fault of the lessee. The lessors prevented access, removed the goods, claimed possession and therefore were bailees obliged to take reasonable care. Clause 11 and its indemnity did not excuse liability. The lessors failed to prove that damage was not caused by their agents' lack of reasonable care. The Tribunal erred in excluding the video evidence and in...

Court Disposition

Appeal allowed in part.

Orders

  • ['The appeal is allowed in part.' 'Orders 1, 3 and 4 of the Tribunal made on 17 December 2010 are set aside.' 'The Appellants are jointly and severally liable to pay the sum of $60,405.00 to the Respondent by way of damages.' 'The stay of Order 2 of the Tribunal, granted on 18 February 2011 by the Appeal Panel, is...