Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2) (RLD) [2012] NSWADTAP 35

Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2) (RLD) [2012] NSWADTAP 35

The respondent, in disseminating and then failing to comply with its own kiosk height restrictions (analogous to an industry code), approving kiosks that obstructed sightlines to the applicant's shop without disclosure, refusing requests for rent relief, and subsequently justifying approvals by amending the restrictions, engaged in a course of unconscionable conduct within the meaning of section 62B of the Retail Leases Act 1994. This conduct, having a sufficient degree of moral tainting, caused economic loss to the applicant. However, the loss was less serious than claimed. The appropriate remedy was abatement of rent by an amount reflecting lost 'premium' site value, rather than full...

Jurisdiction
Australia
Judgment Date
03 October 2012
Procedural Posture
Appeal / Appeal Panel Decision (after Further Evidence and Submissions)
Outcome
Appeal allowed in part; finding of unconscionable conduct against the respondent; order for payment to appellant; directions for further submissions on costs.
Legal Topics
['unconscionable Conduct' 'retail Leases' 'damages Assessment' 'causation' 'estoppel' 'duty of Good Faith' 'industry Codes and Guidelines']
['retail Leases' 'commercial Law' 'administrative Law'] ['unconscionable Conduct' 'retail Leases' 'damages Assessment' 'causation' 'estoppel' 'duty of Good Faith' 'industry Codes and Guidelines']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision (after Further Evidence and Submissions)

Legal Issues

  1. 1 ["Whether the respondent engaged in unconscionable conduct under section 62B of the Retail Leases Act 1994 by approving and permitting the construction of kiosks in contravention of its own guidelines, thereby impacting the applicant's business" 'Whether the applicant was estopped from relying on the height restrictions as a basis for its unconscionable conduct claim' 'Whether the conduct of the respondent caused loss to the applicant' 'How damages for any unconscionable conduct should be assessed']

Ratio Decidendi

The respondent, in disseminating and then failing to comply with its own kiosk height restrictions (analogous to an industry code), approving kiosks that obstructed sightlines to the applicant's shop without disclosure, refusing requests for rent relief, and subsequently justifying approvals by amending the restrictions, engaged in a course of unconscionable conduct within the meaning of section 62B of the Retail Leases Act 1994. This conduct, having a sufficient degree of moral tainting, caused economic loss to the applicant. However, the loss was less serious than claimed. The appropriate remedy was abatement of rent by an amount reflecting lost 'premium' site value, rather than full...

Court Disposition

Appeal allowed in part; finding of unconscionable conduct against the respondent; order for payment to appellant; directions for further submissions on costs.

Orders

  • ['The respondent is to pay to the appellant the sum of $97,535.72.' 'Within 28 days of the decision, the appellant is to file and serve: (i) supplementary submissions relating to the appeal in file 119042, and (ii) submissions relating to the costs of the present appeal (file 119034).' 'Within a further 28 days, the...