Sydney Supermarkets Pty Limited v Xu and anor (No 2) [2008] NSWADT 284

Sydney Supermarkets Pty Limited v Xu and anor (No 2) [2008] NSWADT 284

The Tribunal found the Applicant failed to discharge the onus of proof that the payment of $12,581.89 for outgoings was made; the hearsay evidence from Dr Soliman and the letter from Ms Rayner was insufficient, with absent corroboration from bank records or direct testimony. Accordingly, the Respondents were entitled to retain all payments received, including sums from the bank guarantee. The proceeding was dismissed and, given the Applicant's unmeritorious case and unreasonable conduct—including delay and disregard for directions—special circumstances warranted an order that the Applicant pay the Respondents' costs.

Jurisdiction
Australia
Judgment Date
21 October 2008
Procedural Posture
Claim for Payment of Money Damages Unconscionability / Costs Determination Following Substantive Decision; Application for Reimbursement and Damages Dismissed
Outcome
Application dismissed; costs order in favour of Respondents
Legal Topics
['lease Termination' 'disclosure Requirements' 'unconscionable Conduct' 'outgoings' 'costs in Tribunal Proceedings']
['retail Leases' 'commercial Law'] ['lease Termination' 'disclosure Requirements' 'unconscionable Conduct' 'outgoings' 'costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Claim for Payment of Money Damages Unconscionability / Costs Determination Following Substantive Decision; Application for Reimbursement and Damages Dismissed

Legal Issues

  1. 1 ['Whether alleged payment of $12,581.89 for outgoings was made on behalf of Applicant' 'Whether Applicant entitled to reimbursement for overpaid rent or bank guarantee amounts' 'Whether Respondents engaged in unconscionable conduct' 'Entitlement to costs under section 88 of Administrative Decisions Tribunal Act 1997']

Ratio Decidendi

The Tribunal found the Applicant failed to discharge the onus of proof that the payment of $12,581.89 for outgoings was made; the hearsay evidence from Dr Soliman and the letter from Ms Rayner was insufficient, with absent corroboration from bank records or direct testimony. Accordingly, the Respondents were entitled to retain all payments received, including sums from the bank guarantee. The proceeding was dismissed and, given the Applicant's unmeritorious case and unreasonable conduct—including delay and disregard for directions—special circumstances warranted an order that the Applicant pay the Respondents' costs.

Court Disposition

Application dismissed; costs order in favour of Respondents

Orders

  • ['The Application instituting these proceedings is dismissed' "The Applicant is to pay the Respondents' costs of and incidental to these proceedings, as agreed or as assessed under the Legal Profession Act 2004"]