Red Roll Pty Ltd v Multiplex Latitude Retail Landowner Pty Ltd, Multiplex WS Retail Landowner Pty Ltd and AWPF Management Pty Ltd [2008] NSWADT 200

Red Roll Pty Ltd v Multiplex Latitude Retail Landowner Pty Ltd, Multiplex WS Retail Landowner Pty Ltd and AWPF Management Pty Ltd [2008] NSWADT 200

The second and third respondents, as assignees of the lease and included in the statutory definition of 'lessor', are properly joined and should not be dismissed from the proceedings because, on a purposive construction of the Retail Leases Act 1994, they may be liable for statutory remedies (including in relation to pre-lease representations) and the pleadings, while imperfect, disclose a cause of action to be determined at trial. The Tribunal declines to strike out or dismiss the proceedings against them.

Jurisdiction
Australia
Judgment Date
21 July 2008
Procedural Posture
Retail Tenancy Dispute / Interlocutory Motion—application for Dismissal of Parties
Outcome
Motion to dismiss second and third respondents from proceedings dismissed; leave to apply for costs; directions hearing listed.
Legal Topics
['retail Leases' 'pre Lease Representations' 'assignment of Leases' 'unconscionable Conduct' 'statutory Interpretation']
['property Law' 'commercial Law'] ['retail Leases' 'pre Lease Representations' 'assignment of Leases' 'unconscionable Conduct' 'statutory Interpretation']

Case Brief

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Procedural Posture

Retail Tenancy Dispute / Interlocutory Motion—application for Dismissal of Parties

Legal Issues

  1. 1 ['Whether second and third respondents (assignees of lease) should be dismissed from proceedings concerning alleged pre-lease misrepresentation and unconscionable conduct under the Retail Leases Act 1994' 'Whether liability under s.10 Retail Leases Act 1994 for pre-lease misrepresentations can attach to assignees of the original lessor' 'Whether the pleadings disclose a cause of action against the second and third respondents']

Ratio Decidendi

The second and third respondents, as assignees of the lease and included in the statutory definition of 'lessor', are properly joined and should not be dismissed from the proceedings because, on a purposive construction of the Retail Leases Act 1994, they may be liable for statutory remedies (including in relation to pre-lease representations) and the pleadings, while imperfect, disclose a cause of action to be determined at trial. The Tribunal declines to strike out or dismiss the proceedings against them.

Court Disposition

Motion to dismiss second and third respondents from proceedings dismissed; leave to apply for costs; directions hearing listed.

Orders

  • ['The Tribunal declines to make any order dismissing from these proceedings the Second and Third Respondents.' 'The Motion by the Second and Third Respondents to dismiss them from these proceedings is itself dismissed.' 'Leave is granted to all parties to apply for a costs order relating to these interlocutory...