Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273

Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273

The Tribunal dismissed the interim orders application because the Applicant failed to establish an arguable case for relief under any of the alleged grounds: the evidence did not demonstrate a binding promise to provide compensation, did not establish misleading or deceptive conduct or unconscionable conduct to the necessary standard, and the relief sought would effectively grant substantive relief before the matter is finally determined, creating risk of prejudice to the Respondents.

Parties
Applicant: Evriparas Pty Ltd; Respondent: ING Management Limited; Respondent: The Trust Company Limited
Jurisdiction
Australia
Judgment Date
18 November 2011
Procedural Posture
Interlocutory Application / Hearing and Decision on Urgent Interim Orders
Outcome
Application for urgent interim orders dismissed. Application for original decision listed for direction. Applicant to pay Respondents' costs of the interim hearing day.
Legal Topics
Interim Orders, Unconscionable Conduct, Misleading or Deceptive Conduct, Costs in Tribunal Proceedings
Retail Leasing Administrative Law Interim Orders Unconscionable Conduct Misleading or Deceptive Conduct Costs in Tribunal Proceedings

Case Brief

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Parties

Evriparas Pty Ltd

Applicant

ING Management Limited

Respondent

The Trust Company Limited

Respondent

Procedural Posture

Interlocutory Application / Hearing and Decision on Urgent Interim Orders

Legal Issues

  1. 1 Whether the Applicant has an arguable case for urgent interim relief including reduction of rent and restraint on respondents' enforcement actions pending determination of substantive application
  2. 2 Whether representations by the Respondents or their agents constituted misleading or deceptive conduct or unconscionable conduct under the Retail Leases Act 1994
  3. 3 Whether the Applicant is entitled to urgent interim relief under s 72 of the Retail Leases Act 1994

Ratio Decidendi

The Tribunal dismissed the interim orders application because the Applicant failed to establish an arguable case for relief under any of the alleged grounds: the evidence did not demonstrate a binding promise to provide compensation, did not establish misleading or deceptive conduct or unconscionable conduct to the necessary standard, and the relief sought would effectively grant substantive relief before the matter is finally determined, creating risk of prejudice to the Respondents.

Court Disposition

Application for urgent interim orders dismissed. Application for original decision listed for direction. Applicant to pay Respondents' costs of the interim hearing day.

Orders

  • Application for urgent interim orders dismissed.
  • Application for original decision listed for direction on 8 December 2011 at 11am.