NSW Fair Trading

Dear Sir/Madam,

I’m writing with a request that a hold be placed on the execution of a “Notice of Termination by a Landlord of a Commercial or Retail Lease” (see attachment A) that I’ve received as lessee of a cafe, with vacant possession required by 5.00 pm, 3 June, 2020, or restitution of loss, due to confusion over an agent acting for both the lessor and the lessee, and in self-interest.

    • In December 2018, I approached Mr John Wilcox, proprietor of Nimbin Hills R/E, with a view to the sale of the lease at 1/56 Cullen Street Nimbin, NSW.

The agent for the lease at the time was Nimbin Lifestyles R/E.

Mr Wilcox agreed to list the lease at sale price of $135,000 and suggested adding value by extending its duration. 

    • On 8 April, 2019, I signed an “Agency Agreement for Sale of Business” with Mr Wilcox (see attachment B), that remains valid, and provided him with the existing lease.

    • On 5 August, 2020, after an eight month delay in contacting the lessor, a new lease was registered and a copy provided to Mr Wilcox as agent for its sale.

I was relieved that Mr Wilcox had gained agency over the lease since I am in poor health, in recovery from a heart attack, and had neglected to exercise a previous option to renew; renewal on late notice was achieved at the owner’s discretion.

    • In September, 2019, Mr Wilcox purchased Nimbin Lifstyles R/E and became the agent for both the lessor and lessee of the cafe lease, although I received no written notice from his agency of this change in circumstance.

Mr Wilcox listed the renewed lease, but, as authorised agent for it’s sale, did not bring to my attention that the renewal option would, and subsequently did, expire on 31 December, 2019.

    • On 15 May, 2020, Mr Spain advised that the renewed lease had expired.

I informed Mr Wilcox, who immediately removed a notice from his agency’s window advertising the lease for sale, although a media insert (see attachment C) remains for public perusal outside his agency.

I attempted to negotiate with Mr Wilcox over late lodgement of a renewal notice (see attachment D) but failed to achieve an outcome other than that prescribed by the lessor, who resides in London, of forfeiture of the premises (see attachment E), despite concerns over the collapse of trade and availability of staff through bushfire activity and Covid-19 restrictions. 

Rather than represent my interests, Mr Wilcox focused on soliciting the lease of another cafe property his agency had listed, on behalf of a lessor who is the same lessor as the property Mr Wilcox’s agency leases. 

A solicitor who accompanied me during separate meetings with Mr Spain and Mr Wilcox on 25 May, 2020, noted that she: “Went to see both David the lawyer and John real estate guy. Seems to be real confusing who is representing Philip in sale or lease of his business?”

In view of Mr Wilcox’s dual roles as agent for the lessor and lessee of the lease, in combination with his self-interest in soliciting the lease of an alternative premises, I am seeking a hold on execution of the termination of the lease, or restitution of loss, for the purpose of achieving consideration of breaches of professional conduct and any fatal conflict of interest that may have arisen.  


Yours sincerely,

Philip Mckeon
28 Cullen Street,
Nimbin NSW 2480

philiparts101@gmail.com

27 May, 2020