McGlinn v Sassine (No 2) [2010] NSWADT 218

McGlinn v Sassine (No 2) [2010] NSWADT 218

The lease authorised distribution of rural products and landscape supplies, which encompassed retail businesses listed in Schedule 1 to the Retail Leases Act, and the premises were in fact used for those retail purposes with the respondent's knowledge; the Tribunal therefore had jurisdiction. The respondent was entitled to lock the applicants out after expiry of the lease and did not act unconscionably in doing so, but the applicants retained title to property left on the premises. By selling and otherwise disposing of that property without giving a reasonable opportunity for its removal, the respondent converted it and was liable for its market value, subject to set off for outstanding...

Jurisdiction
Australia
Judgment Date
06 September 2010
Procedural Posture
Original Application in the Retail Leases Division / Decision After Hearing
Outcome
Application partly successful; declarations made, damages awarded for conversion subject to set off for outstanding rent, and no order as to costs.
Legal Topics
['termination of Retail Lease' 'tribunal Jurisdiction' 'retail Shop Lease' 'conversion' "lessee's Property After Lockout" 'set Off for Rent Arrears' 'unconscionable Conduct']
['retail Leases' 'property Law' 'tort Law'] ['termination of Retail Lease' 'tribunal Jurisdiction' 'retail Shop Lease' 'conversion' "lessee's Property After Lockout" 'set Off for Rent Arrears' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Original Application in the Retail Leases Division / Decision After Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction because the lease was a retail shop lease within section 3 of the Retail Leases Act.' 'Whether rent was demanded in excess of the amount legally payable.' 'Whether the premises were abandoned or the lease repudiated.' 'Whether the respondent engaged in unconscionable conduct by demanding rent, locking the applicants out, and dealing with their property.' "Whether the respondent converted the applicants' property left on the premises after lockout." 'What damages and set off should be allowed.']

Ratio Decidendi

The lease authorised distribution of rural products and landscape supplies, which encompassed retail businesses listed in Schedule 1 to the Retail Leases Act, and the premises were in fact used for those retail purposes with the respondent's knowledge; the Tribunal therefore had jurisdiction. The respondent was entitled to lock the applicants out after expiry of the lease and did not act unconscionably in doing so, but the applicants retained title to property left on the premises. By selling and otherwise disposing of that property without giving a reasonable opportunity for its removal, the respondent converted it and was liable for its market value, subject to set off for outstanding...

Court Disposition

Application partly successful; declarations made, damages awarded for conversion subject to set off for outstanding rent, and no order as to costs.

Orders

  • ['Declare that prior to March 2007 there was a lease between Ms Jodie McGlinn and the respondent which constituted a retail shop lease within section 3 of the Retail Leases Act.' 'Order pursuant to section 72 (1) (a) of the Retail Leases Act that the respondent pay to the applicants the sum of $63,100.' 'Declare...