Nam & anor -v- Commonwealth Funds Management Limited & anor [2002] NSWADT 80

Nam & anor -v- Commonwealth Funds Management Limited & anor [2002] NSWADT 80

The Tribunal considered that a prima facie case for interim relief was made out in respect of the applicant's claim that redevelopment works had disrupted business and breached statutory and lease obligations under the Retail Leases Act 1994. The balance of convenience favoured granting limited interim relief as set out in paras 100, 101, 107 and 108, without requiring the applicants to give an undertaking as to damages, in light of the remedial nature of the Act, financial circumstances of the applicants, and the nature of the impact on their business.

Jurisdiction
Australia
Judgment Date
15 May 2002
Procedural Posture
Interim Order Application / Preliminary, Interlocutory Hearing
Outcome
Interim orders granted in part; parties directed to prepare minutes of orders as per paras 100, 101, 107, and 108; case relisted for urgent directions if requested.
Legal Topics
['interim Relief' 'retail Tenancy Claims' 'unconscionable Conduct' 'quiet Enjoyment' 'compensation for Disturbance' 'notice Requirements for Shop Alteration' 'balance of Convenience']
['retail Leases' 'commercial Tenancy' 'statutory Tribunals'] ['interim Relief' 'retail Tenancy Claims' 'unconscionable Conduct' 'quiet Enjoyment' 'compensation for Disturbance' 'notice Requirements for Shop Alteration' 'balance of Convenience']

Case Brief

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Procedural Posture

Interim Order Application / Preliminary, Interlocutory Hearing

Legal Issues

  1. 1 ['Whether interim relief should be granted to restrain works during retail centre redevelopment under Retail Leases Act 1994' 'Whether the respondent lessors breached notification and compensation obligations under ss 33 and 34 of the Retail Leases Act 1994' 'Whether applicant is entitled to interim orders without giving an undertaking as to damages' "Assessment of economic impact caused by redevelopment works on tenant's business"]

Ratio Decidendi

The Tribunal considered that a prima facie case for interim relief was made out in respect of the applicant's claim that redevelopment works had disrupted business and breached statutory and lease obligations under the Retail Leases Act 1994. The balance of convenience favoured granting limited interim relief as set out in paras 100, 101, 107 and 108, without requiring the applicants to give an undertaking as to damages, in light of the remedial nature of the Act, financial circumstances of the applicants, and the nature of the impact on their business.

Court Disposition

Interim orders granted in part; parties directed to prepare minutes of orders as per paras 100, 101, 107, and 108; case relisted for urgent directions if requested.

Orders

  • ['That the respondents maintain signage at the Jamison Street frontage indicating entrance location and names of mezzanine food outlets (para 100)' 'That hoardings connected with works in the vicinity of the Jamison Street frontage be aligned as close as possible to the property line (para 101)' 'That the...