Johnson v D & S Australia Pty Ltd [2021] NSWCATCD 63

Johnson v D & S Australia Pty Ltd [2021] NSWCATCD 63

Applicants were not liable for $4,950 in outgoings as these were not disclosed in a lessor's disclosure statement, rendering the claim unenforceable under s 12A of the Retail Leases Act 1994 (NSW). Applicants failed on all other claims as there was no evidence of agreed variation to lease commencement, alleged damages or misleading/unconscionable conduct, and the lease was lawfully terminated by the respondent for non-payment of rent.

Parties
First Applicant: Frank Steven Johnson; Second Applicant: Lena Na Kang; Respondent: D & S Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
01 February 2021
Procedural Posture
Retail Lease Dispute (consumer and Commercial Division, Ncat) / Hearing and Decision
Outcome
Application partly allowed; otherwise dismissed.
Legal Topics
Retail Leases, Misleading or Deceptive Conduct, Lease Termination, Disclosure Obligations, Unconscionable Conduct
Property Law Commercial Law Consumer Law Retail Leases Misleading or Deceptive Conduct Lease Termination Disclosure Obligations Unconscionable Conduct

Case Brief

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Parties

Frank Steven Johnson

First Applicant

Lena Na Kang

Second Applicant

D & S Australia Pty Ltd

Respondent

Procedural Posture

Retail Lease Dispute (consumer and Commercial Division, Ncat) / Hearing and Decision

Legal Issues

  1. 1 Whether applicants were liable for outgoings under the lease given no disclosure statement was provided
  2. 2 Whether there was breach or repudiation of lease by the lessor
  3. 3 Whether the lease commencement or rent-free periods should be rectified

Ratio Decidendi

Applicants were not liable for $4,950 in outgoings as these were not disclosed in a lessor's disclosure statement, rendering the claim unenforceable under s 12A of the Retail Leases Act 1994 (NSW). Applicants failed on all other claims as there was no evidence of agreed variation to lease commencement, alleged damages or misleading/unconscionable conduct, and the lease was lawfully terminated by the respondent for non-payment of rent.

Court Disposition

Application partly allowed; otherwise dismissed.

Orders

  • Declare pursuant to s 72(1)(b) of the Retail Leases Act 1994 (NSW) that the sum of $4,950 claimed by the respondent in respect of outgoings under the lease is not owing by the applicants to the respondent.
  • The application is otherwise dismissed.