Starwick Pty Ltd v Harrison [2011] NSWADT 58

Starwick Pty Ltd v Harrison [2011] NSWADT 58

The Respondent was liable for the unpaid rent, outgoings and loan because the evidence established those amounts remained unpaid. The loan repayment claim was within the Tribunal's retail tenancy jurisdiction because the loan was made at the same time as, and as an adjunct to, the retail lease and was used to fit out and equip the premises for the leased use, so the liability arose in connection with the use and occupation of the premises. It was fair to order costs because the Respondent's unreasonable purported transfer of the business and possession of the premises to a third party caused Starwick to engage lawyers and commence proceedings to protect its interests.

Jurisdiction
Australia
Judgment Date
23 March 2011
Procedural Posture
Retail Tenancy Claim / Principal Judgment After Ex Parte Hearing
Outcome
Application allowed. The Respondent was ordered to pay Starwick Pty Ltd money owing and costs.
Legal Topics
['tribunal Jurisdiction' 'unpaid Rent and Outgoings' 'loan Repayment Connected With Retail Shop Occupancy' 'costs Orders']
['retail Leases' 'administrative Law' 'costs'] ['tribunal Jurisdiction' 'unpaid Rent and Outgoings' 'loan Repayment Connected With Retail Shop Occupancy' 'costs Orders']

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Procedural Posture

Retail Tenancy Claim / Principal Judgment After Ex Parte Hearing

Legal Issues

  1. 1 ['Whether the Respondent was liable to pay unpaid rent and outgoings under the retail lease.' 'Whether the Tribunal had power under the Retail Leases Act 1994 to order repayment of a loan advanced by the lessor to the lessee for shop fittings and equipment.' "Whether it was fair under s.88 of the Administrative Decisions Tribunal Act 1997 to order the Respondent to pay the Applicant's costs."]

Ratio Decidendi

The Respondent was liable for the unpaid rent, outgoings and loan because the evidence established those amounts remained unpaid. The loan repayment claim was within the Tribunal's retail tenancy jurisdiction because the loan was made at the same time as, and as an adjunct to, the retail lease and was used to fit out and equip the premises for the leased use, so the liability arose in connection with the use and occupation of the premises. It was fair to order costs because the Respondent's unreasonable purported transfer of the business and possession of the premises to a third party caused Starwick to engage lawyers and commence proceedings to protect its interests.

Court Disposition

Application allowed. The Respondent was ordered to pay Starwick Pty Ltd money owing and costs.

Orders

  • ['Peter Harrison is to pay Starwick Pty Ltd the sum of $60,684.85 in respect of money owing to Starwick Pty Ltd.' 'Peter Harrison is to pay the sum of $6,101.78 to Starwick Pty Ltd in respect of its costs of these proceedings.']