Boz v Dadoun

[2007] NSWADT 113

CITATION:	Boz v Dadoun & anor [2007] NSWADT 113
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Nizam Boz RESPONDENT Ahmed Dadoun & Basan Dadoun
FILE NUMBER:	065203
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	27 February 2007
DATE OF DECISION:	28 May 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Lauven Pty Ltd & Anor v Venus Adult Book Shops Pty Ltd & Ors [2006] NSWADT 359 Tringas v Quach [2007] NSWADT 24
REPRESENTATION:	APPLICANT In person RESPONDENT No appearance
ORDERS:	The respondents to pay the applicant a sum of $713.00

Background

1 The applicant, Nizam Boz, is the owner of Shop 2, 184-186 Halden Street, Lakemba. On 7 February 2005, the applicant entered into a 2 year lease with Ahmed Dadoun and Basan Dadoun (the respondents). The lease agreement contained an option to renew for a further 2 years. It would appear that a dispute arose in regard to the lease and on 11 April 2006, the applicant and the respondents settled the dispute by entering into a written agreement following a mediation at the Retail Tenancy Unit. The applicant asserts that the respondents have failed to fully comply with the terms of the agreement and he has initiated these proceedings in order to have the agreement enforced in full.

2 In his application the applicant seeks the following orders pursuant to s.72 of the Retail Leases Act 1994 (‘the Act’):

(a) Removal of the billiard and amusement tables (10) left behind or $2,000.00 for the cost of removing them;

(b) $713.00 unpaid money.

3 The applicant filed his application with the tribunal on 8 December 2006. The tribunal wrote to the applicant and the respondents on 8 December advising the parties that the matter had been set down for directions on 18 January 2007 at 10.30 am.

4 On 18 January 2007, the applicant appeared in person and there was no appearance by the respondents. At this directions hearing the applicant indicated that he thought the respondents were unlikely to participate in the proceedings. According to a note made by the tribunal, the applicant informed the tribunal that the premises, the subject of the lease, was a barber’s shop and that the tenants had left the shop in May 2006 and had left their belongings behind. At this directions hearing the tribunal ordered the applicant to file and serve a copy of the lease, the affidavits and statements on which he relied and an affidavit of proof of service of his application and the evidence on which he would rely by 2 February 2007. The matter was then adjourned for further directions on 7 February 2007 at 12 noon. On 22 January 2007, the Registry of the tribunal wrote to the respondent’s informing them of the orders that had been made. That letter was addressed to the respondents at 1 Fuller Street Chester Hill.

5 On 1 February 2007, the applicant filed an affidavit sworn on that day. In that affidavit the applicant stated that his application was posted to the respondents on 8 December 2006 by pre-paid post in a sealed envelope addressed to the respondent at 1 Fuller Street, Chester Hill in the state of NSW. Annexed to the affidavit was a copy of the lease, a copy of the settlement agreement that has been reached at mediation and a copy of the strata plan which included the premises the subject of the lease.

6 On 8 February 2007, the applicant again appeared before the tribunal at the directions hearing. There was no appearance by the respondents. On this occasion the applicant advised the tribunal that he had also posted a copy of his affidavit and attachments to the respondents. At these directions hearing the tribunal ordered the respondents to file and serve affidavits/statements in reply by 22 February 2007 and that subject to the Tribunal receiving written objections from the respondents by 22 February 2007 the tribunal was to determine the matter on the papers. This latter order was made with the consent of the applicant. On 12 February 2007 the Registry again wrote to the respondents, at the Chester Hill address, informing them of the orders that had been made. There is no evidence of the respondents having responded to this letter.

Notice of proceedings and allegations

7 Section 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) sets out the general procedure of matters that are before the tribunal. Sub-section 73(2) and (3) provide as follows:

73 Procedure of the Tribunal generally

…

(2) The Tribunal is not bound the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to the technicalities or legal form.

8 The rules of natural justice include procedural fairness, which requires the tribunal to ensure that a respondent is made aware of the application, the allegations that are being made, the orders sought and the evidence which is being relied on by the parties.

9 Section 138 of the ADT Act makes provision for the manner in which documents and notices are to be served. For the purposes of this application the section relevantly provides as follows:

138 Notices, service and lodgement of documents

(1) Service of documents and giving of notices

For the purposes of this Act, a notice of document may be given to a person (or a notice or document may be served on a person):

(a) in the case of a natural person – by:

(i) delivering to the person personally, or

(ii) leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document, …

10 In this application it is noted that the lease the subject of this application identifies the respondents’ address as the abovementioned Chester Hill address. On this basis and the other material put before the tribunal by the applicant, the tribunal is satisfied that the respondents have been given notice of the applicant’s application, the nature of the allegations, the orders sought, the evidence relied on and that the tribunal would determine the matter on the papers if they failed to lodge any objection to such a procedure by 22 February 2007.

Relevant legislation

11 Section 72 of the RL Act gives the tribunal jurisdiction to hear and determine ‘retail tenancy claims’. A ‘retail tenancy claim’ is defined in s.70 of the Act to include a claim in connection with a ‘retail tenancy dispute’: see s.70(a). The term ‘retail tenancy dispute’ is defined in s.63 of the Act to mean a dispute concerning the liabilities and obligations of a party or former party to a ‘retail shop lease or former lease’. The term ‘retail shop lease’ is defined in s.3 of the Act. That definition, as it applied on 7 February 2005, was in the following terms:

‘retail shop’ means premises that:

(a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre); or

(b) are used for the carrying of any business (whether or not a business is specified in Schedule 1) in a retail shopping centre.

12 Included in the list of ‘retail shop businesses’ in Schedule 1 of the Act as it applied when this lease was entered into was ‘hairdresser’, ‘games and hobbies shop’ and ‘sporting goods shops’.

13 Section 68 of the Act provides that a ‘retail tenancy dispute’ may not be the subject of proceedings before the tribunal unless and until the Registrar of Retail Tenancy Disputes has certified in writing that mediation under Part 8 of the Act has failed to resolve the dispute or the tribunal is otherwise satisfied that mediation under that part is unlikely to resolve the dispute or matter. In this application a certificate was issued by the Registrar of Retail Tenancy Disputes on 29 September 2006. While that certificate identifies the applicant and the respondent as the parties to the matter in dispute, the applicant has been incorrectly described as the lessee and the respondents as lessor. This is clearly a typographical error and nothing turns on it.

Evidence

14 As mentioned above, the only material before the tribunal in respect to the dispute between the parties is an affidavit of the applicant. Attached to this affidavit is a copy of the relevant lease and the agreement of 11 April 2006. That agreement provides so far as is relevant as follows:

1. Agreement between Nizam Boz (owner) and Ahmed Dadoun and Basam Dadoun (tenant) regarding Shop 2, 184-186 Halden Street, Lakemba (shop).

2. The parties agreed that all claims arising from the lease of the shop have been settled by way of the Tenant agreeing to pay the Owner $14,713.50 as follows:

(a) $5,000.00 by way of a deposit of a cheque by the Tenant into the Owner’s Bank Account on 12th April 2006;

(b) Tenant authorises Owner to bank Bond of $4,000.00 immediately;

(c) $5,713.50 to be paid by Tenant within 30 days from today.

3. Provided payments as per 2 are executed, the lease will be terminated retrospectively as from 11 April 2006 and both parties acknowledge that they have no further claims on each other.

4. Owner will give access to Shop by tenant and remove his belongings and tenant will clean windows of all paint work.’

15 The lease makes provision for an initial annual rent of $26,072.00 per annum payable by fortnightly instalments. The permitted use of the premises is stated to be ‘Retail Sport Fisherman’s accessories’.

Consideration

16 The first matter for determination is whether the tribunal has jurisdiction to hear and determine this application in that it is a ‘retail tenancy claim’. As mentioned in para [11] above, the starting point is whether the premises are in fact a ‘retail shop’.

17 In determining the business the premises were primarily or wholly used for, I have only had regard to that which is stated in the lease as this document evidences what the parties agreed to and what their intention was when the lease was entered into: see Lauven Pty Ltd & Anor v Venus Adult Book Shops Pty Ltd & Ors [2006] NSWADT 359 at [12].

18 A business of ‘Retail Sport Fisherman’s accessories’ is not expressly included in Schedule 1 of the Act. However, the businesses which are listed in the schedule have been given a broad interpretation and a business that sells fishing tackle and accessories has been found to come within the description of a ‘sporting goods’ business: see Tringas v Quach [2007] NSWADT 24 at [51].

19 The next issue is whether the applicant’s claim is a claim in connection with a ‘retail tenancy dispute’. As explained above, this term is defined in s.63 of the Act to mean a dispute concerning the liabilities and obligations of a party or former party to a retail shop lease. In this application, the dispute does not arise directly from the terms of the lease. It arises from a settlement agreement between the parties to the lease in regard to their liabilities and obligations under that lease. In my opinion, the definition of a ‘retail tenancy dispute’ should also be given a wide interpreted. On this basis a dispute over a settlement agreement directly arising from a dispute over the rights and obligations of the parties under a retail lease would also amount to a ‘retail tenancy claim’.

20 Accordingly, the tribunal has jurisdiction to hear and determine this application.

Payment of $713.00

21 The only evidence of the amount paid and left unpaid as required under para 2 of the settlement agreement is that which is asserted by the applicant in his affidavit, namely that $713.00 remained unpaid. That is, he had provided no independent evidence of the payments that were in fact made. At the same time, the respondents have not challenged this contention or the evidence of the applicant in this regard. As the evidence of the applicant is on oath I have accepted that evidence to be true and on this basis it is appropriate for the tribunal to make the order sought in respect to the payment of $713.00.

Removal of property from premises

22 The order sought in respect to the removal of property owned by the respondents from the leased premises is more problematic. Para 4 of the settlement agreement expressly states that the parties agreed that the applicant would give the respondents access to the premises to remove their property. It was not an agreement to the effect that the respondents agreed that they would remove their property. Accordingly, this aspect of the applicant’s application cannot succeed. This does not leave the applicant without a remedy if the property constitutes abandoned property.

Orders

23 For the reasons stated above the tribunal orders that the respondents pay the applicant a sum of $713.00