Pizza Man Australia Pty Ltd v Montesano [2013] NSWADT 208

Pizza Man Australia Pty Ltd v Montesano [2013] NSWADT 208

The internal-door false or misleading representation claim arose no later than when the video store tenant locked the door and indicated it would remain locked, no later than June 2009, so the January 2013 proceeding was out of time. In any event, the evidence showed that the Respondents promised no more than permission to open the wall and install a door, not that they would ensure the door remained open. As to signage, the evidence established only that the Respondents were content for the Applicant and the video store tenant to make their own arrangement, which would end with that tenancy. The Respondents' conduct was the exercise of legal rights in a reasonable way and was not...

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Retail Tenancy Claim Concerning Alleged False and Misleading Representations, Breach of Contractual Obligations, and Unconscionable Conduct Under a Retail Lease / Principal Judgment After Hearing of Amended Application for Original Decision
Outcome
Application dismissed; Applicant ordered to pay Respondents' costs as agreed or assessed.
Legal Topics
['pre Lease Representations' 'internal Doorway Between Tenancies' 'advertising Signage' 'retail Lease Disclosure and Terms' 'limitation Period for Retail Tenancy Claims' 'costs Following the Event']
['retail Leases' 'administrative Law' 'contract Law' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'costs'] ['pre Lease Representations' 'internal Doorway Between Tenancies' 'advertising Signage' 'retail Lease Disclosure and Terms' 'limitation Period for Retail Tenancy Claims' 'costs Following the Event']

Case Brief

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Procedural Posture

Retail Tenancy Claim Concerning Alleged False and Misleading Representations, Breach of Contractual Obligations, and Unconscionable Conduct Under a Retail Lease / Principal Judgment After Hearing of Amended Application for Original Decision

Legal Issues

  1. 1 ['Whether the Respondents made false or misleading pre-lease representations that they would permit and ensure an internal doorway between the pizza shop and adjoining video store remained open during the lease.' 'Whether the Respondents made false or misleading representations or assumed a collateral contractual obligation allowing the Applicant to display advertising signs on the building for the duration of the lease.' 'Whether the Respondents engaged in unconscionable conduct within s.62B of the Retail Leases Act 1994.' "Whether the Applicant's claims concerning the internal doorway were lodged out of time." 'Whether costs should be ordered against the Applicant.']

Ratio Decidendi

The internal-door false or misleading representation claim arose no later than when the video store tenant locked the door and indicated it would remain locked, no later than June 2009, so the January 2013 proceeding was out of time. In any event, the evidence showed that the Respondents promised no more than permission to open the wall and install a door, not that they would ensure the door remained open. As to signage, the evidence established only that the Respondents were content for the Applicant and the video store tenant to make their own arrangement, which would end with that tenancy. The Respondents' conduct was the exercise of legal rights in a reasonable way and was not...

Court Disposition

Application dismissed; Applicant ordered to pay Respondents' costs as agreed or assessed.

Orders

  • ['Application dismissed.' "Applicant to pay Respondents' costs as agreed or assessed."]