Capital and Equity Group Pty Ltd v Hilton Central Ltd
[2010] SASC 197
•2 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CAPITAL AND EQUITY GROUP PTY LTD v HILTON CENTRAL LTD
[2010] SASC 197
Judgment of The Honourable Justice Kourakis
2 July 2010
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
LANDLORD AND TENANT - CREATION OF RELATIONSHIP - PAYMENT OF RENT
LANDLORD AND TENANT - TENANCIES OTHER THAN FOR A TERM - LESSER PERIODIC TENANCIES - MONTHLY TENANCIES - OTHER MATTERS
Appellant commenced proceedings in Magistrates Court claiming to hold a lease from respondent over commercial premises – appellant sought interlocutory orders allowing it to continue to occupy premises until its claim finally determined – Magistrate dismissed interlocutory application on grounds that appellant held no more than a monthly periodic tenancy – no application for summary judgment before Magistrate – whether orders should be set aside because Magistrate made final orders on interlocutory application with respect to parties’ rights of occupancy and possession – whether legal controversy before Magistrate could have been adjudicated on affidavit evidence alone.
Held: Appeal allowed – appellant did not apply for final orders in interlocutory application – there was no application before Magistrate on which appellant’s proceedings could be summarily dismissed – there was a real and substantial dispute over the nature and terms of appellant’s tenancy – the appellant’s claim could not be disposed of summarily – Magistrate’s final orders on interlocutory application should be set aside.
Real Property Act 1886 s 69; Retail and Commercial Leases Act 1995 s 20B; Magistrates Court (Civil) Rules 1992 r 26A, r 63, r 64, referred to.
RM Hosking Properties Pty Ltd v Barnes [1971] SASR 100, applied.
CAPITAL AND EQUITY GROUP PTY LTD v HILTON CENTRAL LTD
[2010] SASC 197Magistrates Appeal: Civil
KOURAKIS J: The appellant (Capital and Equity) sought interlocutory orders against the respondent (Hilton Central) in the Magistrates Court allowing it to continue to occupy commercial premises (the premises) until its claim to hold a lease was finally determined. Hilton Central is the proprietor of a suburban shop and office centre (the centre) on which the premises are located. Hilton Central purchased the centre after its predecessor in title had leased the premises, for a term exceeding six months, to Capital and Equity. The Magistrate dismissed Capital and Equity’s interlocutory application on the grounds that Capital and Equity held no more than a monthly periodic tenancy. In the Magistrate’s opinion, it followed that Hilton Central, having given Capital and Equity notice to quit the premises, was entitled to possession of the premises.
Capital and Equity appealed those findings on the ground that the Magistrate had erred in failing to find that it occupied the premises pursuant to a lease for a term of more than six months. Capital and Equity contends that, because it held such a lease, occupation was protected by the Retail and Commercial Leases Act 1995 (the Act).
On the hearing of this appeal it became apparent that the Magistrate had proceeded to make final orders with respect to the parties’ rights of occupancy and possession of the premises which were adverse to Capital and Equity, even though the only issue before him was Capital and Equity’s interlocutory application for orders preserving the status quo until the final determination of the substantive dispute. Capital and Equity filed its interlocutory application simultaneously with the application by which it commenced the primary proceeding. The interlocutory application was marked specially returnable and was listed soon after the proceedings were issued.
The appellant’s legal representatives must bear some responsibility for the way in which the hearing before the Magistrate proceeded because the orders they sought on the interlocutory application simply replicated the final relief which had been sought on the summons. I do not have the transcript of the hearing before the Magistrate, but the respondent’s counsel informed me from the bar table that he understood the submissions to be directed towards final relief. The appellant was represented before me by different counsel; however, I have received an affidavit from the appellant’s solicitor. He deposes that the appellant never intended to seek final relief and that the interlocutory application was made and prosecuted in order to maintain the status quo until the final disposition of the primary proceedings.
Be that as it may, for the reasons which I develop further below, it is my view that the final orders made by the Magistrate should be set aside for two reasons. First, I am satisfied that there was no application before the Magistrate on which he could have summarily dismissed the appellant’s primary proceeding and that the hearing was not conducted as if the respondent had in fact applied for such an order. Secondly, the orders should be set aside in the interests of justice. The affidavit material relied on by the parties on the interlocutory application shows that the adjudication of the dispute over the right to occupy the premises requires the resolution of substantial factual disputes and legal issues. In my view, the legal controversy could not be satisfactorily and fairly resolved on the affidavit evidence alone, even if the issues had been properly joined on that material, which they were not. The prejudice to the respondent can, if necessary, be dealt with by an appropriate award of costs.
The primary proceedings
Capital and Equity commenced the proceedings to which I have referred in the Magistrates Court on 3 February 2010. The action was initiated by filing a completed Form 3E in accordance with the requirement of Magistrates Court (Civil) Rules 1992 (MCR) Rule 26A(1). Form 3E is entitled “Application – Retail and Commercial Leases Act 1995” and it plainly commenced proceedings for final relief.[1] I shall continue to refer to the action so commenced as the primary proceedings.
[1] Magistrates Court (Civil) Rules 1992 Rule 26A and the definition of “action” in Rule 2(1).
Capital and Equity pleaded in the primary proceedings that it was the lessee of the premises pursuant to a lease for a term, commencing on 1 November 2008 and ending on 1 November 2013, at a weekly rental of $660 (the lease). By its own pleading, Capital and Equity acknowledged that the lease was not made with Hilton Central, which became the registered proprietor on 15 May 2009, but with its predecessor in title to the premises. Capital and Equity pleaded that on 20 August 2009 Hilton Central served on it an invoice for rent for the period from 1 November 2008 to 31 August 2009 at the rate of $660 per week and that it then paid the total sum of $29,040 claimed by that invoice on 1 September 2009. On this pleading, Hilton Central by its invoice claimed, and Capital and Equity paid, rent for a period preceding the ascension of Hilton Central to the legal title of the premises. The pleading alleges therefore that the parties acted, to each other’s knowledge, on the basis that their mutual rights and obligations with respect to the premises were governed by the lease.
Capital and Equity’s pleading continued that, on a date unknown, but after it had paid the rent claimed on the invoice, Hilton Central re-entered the premises and made alterations which substantially detracted from Capital and Equity’s rights of quiet possession under the lease. Later, on 16 November 2009, Hilton Central purported to serve a Notice to Quit on the ground of non-payment of weekly rental at the rate of $1,000 per week (exclusive of GST). Capital and Equity claimed that thereafter, between 16 and 20 November 2009, Hilton Central trespassed upon its premises, purported to terminate the lease and distrained valuable motor vehicles which were stored on the premises.
The final relief sought by Capital and Equity was, first, a declaration that it was entitled to a lease of the whole premises for a period of five years terminating on 1 November 2013 at a weekly rental of $660 and, secondly, an order that the defendant reinstate the premises in its original condition. It also sought compensation for breach of the lease and other damages.
The interlocutory application
On the same day on which it initiated the primary proceeding, Capital and Equity filed a Form 21 application.[2] The application was endorsed with a request that it be heard “Specially Returnable” and sought orders in the same terms as the relief sought in the primary proceedings it had filed. The Registrar made the application specially returnable for 5 February 2010.
[2] Magistrates Court (Civil) Rules 1992 Rule 64.
Form 21 is prescribed by MCR Rule 64(1). It is the form by which interlocutory applications are commenced.[3] In the ordinary course, the interlocutory application would have been listed on a date which allowed for service not less than four clear days before the hearing.[4] The special listing given by the Registrar was made pursuant to MCR Rule 64(4). In his reasons the Magistrate refers to the application which came before him on 5 February 2010 as an interlocutory one.
[3] See Magistrates Court (Civil) Rules 1992 Rule 63 and the definition of “application” in Rule 2(1).
[4] Magistrates Court (Civil) Rules 1992 Rule 64(3).
Capital and Equity had filed affidavit material in support of the interlocutory relief it claimed when it initiated the proceedings on 3 February 2010. On 5 February 2010 the Magistrate adjourned the interlocutory application to 11 February 2010. In the intervening period Hilton Central filed its affidavit material.
It is important to observe from the procedural history I have set out that there was no application for summary judgment; there were no orders that the matter be heard in accordance with an expedited procedure pursuant to MCR Rule 8. Even if the interlocutory application by Capital and Equity could be so treated because of the way in which it was prosecuted, final orders adverse to it could not be made on its application for summary judgment. If one thing is clear about the way in which the proceedings were conducted in the Magistrates Court, it is that no formal or de facto application for summary judgment was made by Hilton Central.
The affidavit material
Mr Ventrice is the manager of Capital and Equity. He deposed that the plaintiff (ie. the appellant) carried on business as a financier and merchant from the premises where it kept a number of expensive motor vehicles on behalf of its clients. Mr Ventrice claimed that the plaintiff was not in arrears of rent when Hilton Central purported to terminate the lease on 16 November 2009 for non-payment and proceeded to distrain the vehicles.
Mr Ventrice deposed that he had negotiated the lease with Claremont Management Pty Ltd (Claremont), the previous registered proprietor of the premises. The lease was not in writing but included the following terms:
·Capital and Equity would conduct its business as a financier of motor vehicles from the premises.
·The premises comprised some 400 square metres of air conditioned warehouse and office space.
·The term of the lease was for five years commencing in November 2008 with an option of renewal for a further five years.
·The weekly rental was $660 inclusive of GST.
Mr Ventrice stated that, as of the date of swearing his affidavit, the plaintiff had occupied the premises for a continuous period of greater than six months. A copy of an invoice rendered by Hilton Central on 16 July 2009 claiming rent for the period 1 November 2008 to 31 August 2009 at a rate of $660 per week, inclusive of GST, was exhibited to Mr Ventrice’s affidavit. Mr Ventrice deposed that that invoice was paid on 1 September 2009 but that thereafter Hilton Central had demanded rent of $1,100 per week, inclusive of GST. His refusal to pay that rent resulted in his eviction on 16 November 2009.
Mr Ventrice exhibited to his affidavit a notice to quit dated 16 November 2009 which asserted that Capital and Equity was in arrears of rent for 14 days as at 16 November 2009. He also exhibited an inventory, issued pursuant to the Landlord and Tennant Act 1936, of a number of motor vehicles, including expensive American and European made sports cars which had been distrained by Hilton Central on account of outstanding rental and associated costs in the sum of $8,800. Mr Ventrice deposed that he re-entered the premises on 27 November 2009 after paying the amount claimed under protest.
According to Mr Ventrice, on 1 February 2010 Hilton Central again changed the locks and demanded through its solicitor the sum of $15,000 on account of rent for the months of December 2009 and January 2010.
In a further affidavit, Mr Ventrice asserted that Hilton Central had accepted the rights and obligations of a landlord. He then deposed:
Even if the defendant was not bound by the provisions of the previous lease and was entitled to resile from its patent conduct in accepting rental I believe that the duration of the tenancy would give the plaintiff rights under the Retail and Commercial Leases Act 1995.
In response, Hilton Central filed an affidavit of its director Mr Iannella. He deposed that Hilton Central purchased the premises on 15 May 2009 from Claremont. Claremont’s director provided Mr Iannella with a tenancy schedule which he exhibited to his affidavit. The schedule recorded that the premises, which were referred to in the schedule as the “Toy Shop”, comprised 400 square metres and were leased for a term of one year from 1 October 2008 with an option to renew for a further year at an annual rental, exclusive of GST, of $48,000.
Mr Ianella also exhibited a settlement statement with respect to the purchase of the premises. On the face of the statement, an adjustment of the sum due at settlement was calculated on the basis that the rental for the premises was $4,400 per calendar month. The settlement statement includes in the debit column certain amounts representing Hilton Central’s proportion of rates and taxes from 12 May 2009 which were to be paid by it at settlement on account of the vendor’s pre-payment of rates and taxes to 30 June 2009. There also appeared in the debit column an amount of $67,170.72 on account of rent to be received from LJ Hooker. On the credit side of the settlement statement, the rent from several shops in the centre, including the premises, was adjusted on the apparent basis that the rent for those premises had been paid to the vendor to 30 June 2009. The credit is allowed for that rent which was payable between 12 May 2009 and 30 June 2009. The tenancy schedule prepared by LJ Hooker indicates that the tenancies for which a credit was allowed in the settlement statement were in arrears of rent as at the date of settlement. If that were so, it is not clear on what basis an allowance was made. I find it difficult on the limited evidence before me to understand the basis for the allowances made for rental income. There may have been collateral agreements which affected the way in which the rental was treated.
Mr Iannella deposed that Hilton Central and Capital and Equity had negotiated a lease but that no agreement had been reached because of Capital and Equity’s failure to pay rent on time. He also deposed that the monthly rent of $4,400 was outstanding for the months of December 2009 and January 2010.
Hilton Central also relied on an affidavit of its solicitor. The solicitor deposed that settlement on the centre occurred on 15 May 2009. Exhibited to the solicitor’s affidavit was a letter sent by her to Capital and Equity on 1 September 2009. In that letter the solicitor wrote:
My client became the registered proprietor of the premises on 15 May 2009. At that time you were and continue to be in occupation of the premises pursuant to a leasing agreement entered into by you with the previous owner of the premises. Pursuant to that agreement the monthly rental payable with respect to the premises is $3,333 per calendar month plus GST. … I have been instructed that you have not paid the rent with respect to the premises from 1 January 2009. … The fact is that as from 15 May 2009 you are obliged to pay $3,333 per calendar month plus GST for continued occupation of the premises. Tax invoices are enclosed.
It appears from the face of the letter that tax invoices for the period 15 May 2009 to 31 August 2009 were enclosed together with a separate tax invoice for the month of September 2009. A total amount of $16,714.15 was claimed.
The solicitor deposed that she was subsequently informed by Mr Iannella that he had incorrectly instructed her as to the monthly rent and that it was in fact $4,400 per month. The solicitor deposed that later again she was instructed that Capital and Equity had paid arrears of rent to 31 August 2009. That fact corroborates Mr Ventrice’s evidence that he paid the arrears claimed on the earlier invoice on 1 September 2009. There is no other reference in the material relied on by Hilton Central to that earlier invoice.
The solicitor deposed that on 7 December 2009 she sent to the registered office of Capital and Equity and copied to its solicitor a notice to vacate the premises by no later than 31 January 2010. The notice read:
It had been assumed that you would vacate the premises. You have not done so. Accordingly a tax invoice for rent for the month of December 2009 is enclosed. Payment is required within 14 days, failing which there will be a repeat of previous actions to distrain for rent. Furthermore as you are nothing more than a monthly tenant you are hereby given notice that you are required to vacate the premises no later than 31 January 2010 and on that date return the keys to the landlord. The requirement that you vacate the premises is more pressing than before as the landlord has received notification from the Council that you have not obtained approval to undertake the activity of used car sales from the premises. Although notice of termination of your tenancy has been given this does not absolve you of the necessity to pay rent for December 2009 and January 2010.
On the face of the affidavits, there is a factual dispute as to the monthly rental payable by Capital and Equity. More fundamentally, that dispute raises an issue as to the nature of the tenancy on which that rental was payable. In my view, the demand and payment of rent on 1 September 2009 evidences an agreement between Capital and Equity and Hilton Central to be bound by the terms of the lease negotiated with Claremont. Alternatively, it evidences a mutually adopted convention that both Capital and Equity and Hilton Central would conduct their relationship on that basis. The legal consequences of that conduct were adverted to in Mr Ventrice’s affidavit in reply to which I referred in [19] above.
The hearing
The Magistrate heard argument from the parties based on that affidavit material on 11 February 2010 and delivered his reasons on 16 February 2010.
The reasoning of the Magistrate appears in the following paragraphs:
[17]Mr Swan for the defendant submitted that there was no basis upon which it might be suggested that the Retail and Commercial Leases Act would prevail against the provision of the Real Property Act. He said that if the lease had not been committed to writing and hence was not in registrable form, it could not prevail against the new registered proprietor unless the lease was for less than 12 months. He said that the scheme of the two acts was clearly consistent, namely that Parliament intended that if a lease was to prevail against a bona fide purchaser – even a bona fide purchaser with notice – that lease should be registered.
[18]I note reference in the Stokes v MPC case to the only apparently then reported decision in South Australia on point, namely R.M. Hosking Properties Pty Ltd v Barnes & Ors [1971] SASR 100. Walters J. concluded – notwithstanding the fact that a purchaser had clear knowledge of the unregistered lease of the tenant – that the purchaser was entitled to evict the tenant upon requisite notice.
Conclusion
[19]I reject Mr Rigall’s submission that I must conclude that the oral unregistered lease prevails over the defendant’s unencumbered title. I accept Mr Swan’s submission that the defendant is entitled both under common law of property and pursuant to the provisions of the Real Property Act to give notice to Capital & Equity to quit and is entitled to take possession of the property. It follows that I find that the Notice to Quit was lawful and further that the plaintiff is not entitled to an order for relief from forfeiture.
No application for summary dismissal
It will be noticed that the findings in [19] of the Magistrate’s reasons purport to finally resolve the mutual rights and obligations of the parties over the occupancy of the premises. Even if the Magistrate had correctly reached his conclusion, the only order he properly could have made was to dismiss Capital and Equity’s application for interlocutory relief. I accept that the form of the interlocutory orders which were sought and the way in which submissions were put may have given the impression that what was in issue was the underlying right to occupy the premises. However, the only application before the Magistrate was one brought by Capital and Equity seeking interlocutory relief. I am informed by the affidavit of its solicitor that that was all it ever intended to seek. There was no conduct on the part of either party which expressly or implicitly raised for determination the summary disposition of the proceedings in favour of Hilton Central. For this reason, I would allow the appeal and set aside the Magistrate’s final orders.
Application of s 20B of the Act
I now turn to the ground on which Capital and Equity appealed the Magistrate’s decision. As I have explained in [27] above, there was a real and substantial dispute over the nature and terms of Capital and Equity’s tenancy. Capital and Equity claimed that s 20B of the Act operated on the lease or tenancy it held and extended it to a fixed term of five years. Section 20B provides:
20B—Minimum 5 year term
(1) The term for which a retail shop lease is entered into must be at least five years.
The term of a retail shop lease is worked out under this section on the assumption that any right or option of renewal or extension under the lease or a collateral agreement will in fact be exercised. However, a right or option of renewal or extension will not be taken into account if it is given after the lease is entered into.
(2)A lease is not invalidated by contravention of this section but the term of the lease is extended to bring the term (or aggregate term) to five years.
Example—
If a lease is entered into for a term of three years, its term is extended by two years to five years. If a lease is entered into for a term of two years with an option for a further one year after that initial two years, the term of the lease is extended to four years (with the option for a further one year after that initial four years).
(3) This section does not apply to a lease if—
(a) the lease is a short-term lease (ie a lease entered into for a fixed term of 6 months or less); or
(b) the lease arises when the lessee holds over after the termination of an earlier lease with the consent of the lessor and the period of holding over does not exceed 6 months; or
(c) the lease contains a certified exclusionary clause; or
(d) the lessee has been in possession of the retail shop premises for at least 5 years; or
(e) in the case of a retail shop lease that is a sublease—the term of the retail shop lease is as long as the term of the head lease allows; or
(f) the lease is of a class excluded by regulation from the ambit of this Division.
Section 20B(2) operates on a retail shop lease with a term of less than five years to extend the lease and bring the term (or aggregate term) to five years. However, s 20B(3) excepts from the operation of s 20B(2) leases entered into for a fixed term of six months or less and a holding over which does not exceed six months. Notwithstanding the impression which might be gained from a first reading of s 20B(3)(a) and (b), s 20B(2) arguably operates on a monthly periodic tenancy. In my view, a monthly periodic tenancy is not entered into for a “fixed term of 6 months or less” (emphasis added) because a periodic tenancy has no fixed term. The periodic tenancy continues indefinitely until it is terminated by notice; a landlord cannot take back possession after the month has passed without giving notice.[5] It follows that, when a monthly periodic tenancy is first entered into, it contravenes s 20B(1) and is therefore extended to five years by s 20B(2). If that proposition is right, even if Hilton Central’s contention as to the nature of Capital and Equity’s underlying tenancy is accepted, the monthly periodic tenancy is not excepted by s 20B(3)(a) from the operation of s 20B(2) and is transformed into a lease for a fixed term of five years.
[5] Amad v Grant (1947) 74 CLR 327 at 337 per Latham CJ, at 340-1 per Rich J.
Before the Magistrate, Capital and Equity relied on the fact that it had been in occupation for a period exceeding six months. However, the benefit of a five year term is not conferred on any period of occupation of more than six months; s 20B(3)(b) is limited to a period of occupation for more than six months on a holding over. On no version of the facts was Capital and Equity holding over.
Nevertheless, the construction of s 20B(3)(a) to which I have referred above is supported by the very existence and terms of s 20B(3)(b). On a holding over, a fixed term tenant becomes a monthly tenant. However, because the monthly tenancy “arises when the lessee holds over after the termination of an earlier lease”, it is excepted from the operation of s 20B(2) unless the holding over continues for six months or more. It would not have been necessary to enact s 20B(3)(b) if a monthly periodic tenancy fell within s 20B(3)(a). Section 20B(3)(b) appears to have been enacted to modify the operation of s 20B(2) so that a monthly tenancy on a holding over is not, by force of s 20B(2), extended to five years unless it continues for six months or more.
If Capital and Equity held a monthly tenancy, it was one in which it entered into with Hilton Central and, if a monthly tenancy is protected, Capital and Equity has a right to occupy whether or not Hilton Central is or was bound by the earlier lease with Claremont. The same can be said if, as Capital and Equity contends, Hilton Central by its conduct after purchase agreed or otherwise bound itself to a new lease with Capital and Equity on the same terms as the earlier lease with Claremont.
In my view, s 69 of the Real Property Act 1886 does not immunise the title of a registered proprietor from new interests in the land which he or she grants to a person who also happens to have held an interest under his or her predecessor in title. If authority for that proposition is needed, it is to be found in the following passages from the reasons of Walters J in RM Hosking Properties Pty Ltd v Barnes:[6]
Although the defendants remained in occupation of the premises for the balance of the initial term and paid the stipulated rent to the plaintiff after it became the registered proprietor, I am not satisfied on the evidence that there was, as between the plaintiff and the defendants, any fresh agreement with respect to any form of tenancy. I am unwilling to hold by reason of the facts that the plaintiff allowed the defendants to remain in occupation of the premises, accepted rent from them, and substituted toilet accommodation for that originally provided, that there should be inferred a tacit agreement to create a fresh relationship between the plaintiff ad the defendants according to the tenor of their former holding under the Karasavases. It is my opinion that once the plaintiff became the registered proprietor of the land the defendants were constituted tenants at will of the plaintiff as the new registered proprietor, taking as a bona fide purchaser for value and without fraud.
…
I find that since the plaintiff became the registered proprietor of the land, the defendants have remained in occupation of the premises as tenants at will only, and that since 13th December, 1969 when the term of the original holding expired, they have been holding over as tenants at sufferance, on a weekly basis. As the rent stipulated was payable weekly, the implication of law is that they were weekly tenants (cf. Adver v Blackman). In my view, the purported exercise by the defendants, by their notice in writing dated 12th September, 1969, of the option for a renewal of the term under which they entered into occupation of the premises as tenants of the Karasavases was ineffective to create a new tenancy. I also find that the notice, given by letter dated 9th January, 1970 from the plaintiff’s solicitors to the defendants’ solicitors, requiring the defendants to vacate the premises on 31st January, 1970 was reasonable notice and sufficient to determine the defendants’ tenancy (cf Josephson v Mason, per Sly J at p265). The plaintiff having proved its title as the registered proprietor of the land in question, succeeds in its claim by virtue of its certificate, and it is therefore entitled to an order that the defendants give up possession.[7] (citations omitted)
[6] [1971] SASR 100.
[7] RM Hosking Properties Pty Ltd v Barnes [1971] SASR 100 at 105, 107.
It is implicit in those passages that, if a fresh tenancy had been created, it would not have been defeated by s 69 of the Real Property Act 1886. That result is consistent with the well accepted general proposition that indefeasibility does not protect a registered proprietor from the consequences of his or her own actions.[8]
[8] Bank of South Australia v Ferguson (1998) 192 CLR 248 at 255; Bahr v Nicholay (No 2) (1998) 164 CLR 604 at 614.
It follows that, if the evidence of Capital and Equity were accepted, it has an arguable case that Hilton Central was bound by its own conduct to treat Capital and Equity as occupying the premises on a lease on the same terms as the earlier lease with Claremont. Capital and Equity has a further claim, which is also arguable, that even if it has no more than a monthly periodic tenancy, it is entitled to the protection of s 20B of the Act. Those claims cannot properly be disposed of summarily. I would therefore also allow the appeal for this reason.
Conclusion
I allow the appeal. I set aside the orders made by the Magistrate on the appellant’s interlocutory application. Much time has passed since the interlocutory application was made. I will hear the parties as to whether the matter should be remitted to the Magistrates Court or whether Capital and Equity’s interlocutory application should first be heard by me.
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