Hong Ha Mascot Bakery Pty Limited v G & J Drivas Pty Limited and Telado Pty Limited

REasons for decision 1These proceedings arise out of dealings between Hong Ha Bakery Pty Ltd (for convenience, the Applicant) and G & J Drivas Pty Ltd and Telado Pty Ltd (the Respondents). The Applicant in its amended application sought the following relief: "1. A declaration that the Lease of premises at Shop 28, Greenway Arcade, 222-230 Church Street, Parramatta (Premises) has not been validly terminated. 2. Relief against forfeiture. 3. Orders for reinstatement of the Lease. 4. Damages for lost profit whilst the applicant is out of possession. 5. A declaration that the respondent has engaged in unconscionable conduct. 6. Orders for compensation. 7. Costs. 8. Further or other orders including such injunctions and interlocutory relief as the Tribunal deems fit." 2The Respondents by their application seek: "1. Order pursuant to Section 72(1 )(a) of the Retail Leases Act 1994 that the respondent pay to the applicants the sum of $10,849.85. 2. Order pursuant to Section 72(1)(c)(iv) of the Retail Leases Act 1994 that the respondent refrain from selling, or offering for sale, at the premises known as Shop 28, Greenway Centre, 222-230 Church Street, Parramatta (Premises): (a) spring rolls and dim sims, either separately or as filling in bread rolls, and (b) Vietnamese summer rolls. 3. An order pursuant to Section 72(1)(c)(iv) of the Retail Leases Act 1994 that the respondent restore the shopfront of the Premises so that the shopfront conforms with the respondent's plans for the fit out of the Premises approved by the applicants, being the plans which are annexure "A" to the Affidavit of Dimitris Drivas dated 9 September 2011 filed in Administrative Decisions Tribunal Retail Leases Division proceedings file number 115090. 4. An order pursuant to Section 72(1)(c)(iv) of the Retail Leases Act 1994 that the respondent complies with clauses E1.5 and G1 2 of the Building Code of Australia, as particularised in sub-paragraphs (h), (i), (j) and (k) of Notice of Breach of Covenants under Section 129 of the Conveyancing Act 1919 (NSW) dated 7 July 2011 given by the applicants to the respondent." 3At all material times the Respondents owned property at 220-230 Church Street Parramatta known as the Greenway Centre. It comprised a number of retail shops and commercial offices. 4In or about July 2010, negotiations commenced between the parties with a view to the Applicant becoming the lessee of a shop then vacant in the Centre, namely the shop known as Shop 28 (hereafter the premises). As a result of those negotiations a document purporting to be a lease was signed by Mr Tong Thuan Hua on behalf of the Applicant and sent by the Applicant's then solicitors, Than & Co, to the then solicitors for the Respondents, N C Coombes & Co under cover of a letter dated 19 October 2010: "Hong Ha Mascot Bakery Pty Limited lease from G & J Drivas Pty Limited and Telado Pty Limited Premises: Shop 28, 222-230 Church Street, Parramatta We refer to the above matter and enclose the following in escrow pending our client's receipt of the construction certificate (CC):