Bourbon Street Kitchen Pty Ltd v Sion Pty Ltd

[2019] ACTSC 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bourbon Street Kitchen Pty Ltd v Sion Pty Ltd

Citation:

[2019] ACTSC 60

Hearing Dates:

21 February 2019; 27 February 2019; 7 March 2019; and 14 March 2019

DecisionDate:

14 March 2019

Before:

Elkaim J

Decision:

See [7]

Catchwords:

COMMERCIAL LEASE – termination of lease by Landlord – contrary to s 122 of the Leases (Commercial and Retail) Act 2001 (ACT) – tenant locked out of premises – injunctive relief sought

Legislation Cited:

Leases (Commercial and Retail) Act 2001 (ACT) s 122

Parties:

Bourbon Street Kitchen Pty Ltd (Plaintiff)

Sion Pty Ltd (Defendant)

Representation:

Counsel

Self-represented (Plaintiff)

Mr K Pattenden (Defendant)

Solicitors

Self-represented (Plaintiff)

Elringtons Lawyers (Defendant)

File Number:

SC 71 of 2019

ELKAIM J:

1. This matter originally came before the Court on 21 February 2019 as an ex parte application for injunctive relief. The plaintiff had been excluded from the premises it had leased from the defendant. The defendant’s real estate agent was able to be contacted on that day and he agreed to allow the plaintiff access to the restaurant.

1. Since the initial orders the matter has been before the Court, including today, on four further occasions, when for different reasons the matter has been stood over. It is now time that, as far as the Supreme Court orders are concerned, the matter be brought to finality.

1. This dispute should be in the Magistrates Court where it is already being litigated (CL 27/2018) and has a hearing date of 20 May 2019. Although the proceedings in the Magistrates Court arise from a different notice of termination they nevertheless pertain to the same overall dispute.

1. It is worth noting here that the proceedings that generated the Supreme Court application arose from the landlord changing the locks on the very same day that the notice of termination (purportedly giving the right to evict the tenant) was served. This is obviously entirely contrary to s 122 of the Leases (Commercial and Retail) Act 2001.

1. I had hoped that the parties could reach some agreement which would allow the matter to leave this court and continue in the Magistrates Court. Unfortunately, and I do not blame either party for this position, they have not been able to do so.

1. I therefore intend to make orders which I hope will suit the interests of both parties. These orders are derived from the proposed consent orders that were submitted by the defendant but not agreed to by the plaintiff.

1. I make the following orders:

1.The Orders made on 21 February 2019 are discharged, on the following terms:

(a) The defendant is not to deny the plaintiff or its staff access to the property (being the area subject to Lease RN 2064083) until the earliest of:

i.The commencement of the hearing of proceedings CL 27/2018 in the Magistrates Court; or

ii.Agreement between the parties; or

iii.Termination of the lease in conformity with s 122 of the Leases (Commercial and Retail) Act 2001, except that the requirement for the payment of rent cannot be the basis for a notice of termination if the rent is being paid on a weekly basis instead of a monthly basis; or

iv.Expiry of the term of the lease.

2.Liberty to both parties to apply on 48 hours’ notice.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 14 March 2019