D.B. Rreef Funds Management Ltd & P.T. v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management)
[2009] NSWADT 216
•17 August 2009
CITATION: D.B. Rreef Funds Management Ltd & P.T. v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management) [2009] NSWADT 216 DIVISION: Retail Leases Division PARTIES: 075192
APPLICANTS
D.B. Rreef Funds Management Ltd & P.T. LtdRESPONDENT
Valentino Home Fashion Pty Ltd075225
RESPONDENT
APPLICANT
Valentino Home Fashion Pty Ltd
Westfield Hurstville (Westfield Management)FILE NUMBER: 075192 and 075225 HEARING DATES: 20 July 2009 SUBMISSIONS CLOSED: 20 July 2009
DATE OF DECISION:
17 August 2009BEFORE: Callaghan P, SC, Deputy President; Harrison B - Non-Judicial Member CATCHWORDS: Leave to lodge proceedings with extended time – extension nunc pro tunc – limitation provision – condition precedent to proceedings – meaning of liability or obligation – no reading down by Tribunal of NSW legislation by reason of Commonwealth Constitution LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Commonwealth Constitution
Judiciary Act 1903 (Cth)Retail Leases Act 1994
Trade Practices Act 1974 (Cth)CASES CITED: AG v 2UE Sydney Pty Ltd [2006] NSWCA 349, 226 FLR 62
Bischof v Werncog [2004] NSWADT 241
Dandashli v Dandashli [1996] NSWCA 138
D.B. Rreef Funds Management v Valentino Home Fashion Pty Ltd [2008] ADT 332
Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427
Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354
Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADTAP 26
Ingot v Macquarie [No.3] [2005] NSWSC 225
Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77
Wardley Australia Pty Ltd v Western Australia (1992) 175 CLR 514REPRESENTATION: APPLICANT
RESPONDENT
R Angyal, SC
C Kelly, agentORDERS: 1.As at 4 December 2007, the Applicant’s unconscionable conduct claim or claims made in the Amended Application for Original Decision in proceedings 075225 may be lodged to include conduct in connection with the subject lease, more than 3 years but no more than 6 years after the alleged unconscionable conduct occurred
2.As at 4 December 2007, each of the Applicant’s retail tenancy claims made in the Amended Application for Original Decision in proceedings 075225 may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose
3.Proceedings 075192 and 075225 are listed for a directions hearing on August 25, 2009 at 9.30am.
Background
1 This Decision deals with a Notice of Motion of the Applicant in proceedings 075225, whereby Valentino Home Fashion Pty Ltd (hereinafter called “the Lessee”) seeks the following orders:
- “1.That the Applicant’s unconscionable conduct claim, may be lodged to include conduct in connection with the lease, more than 3 years but no later than 6 years after the alleged unconscionable conduct occurred.
2.That the Applicant’s retail tenancy claim(s), in connection with the lease, may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose.”
2 The background to these proceedings and their history up to 12 December 2008 are set out in paragraphs 1 to 9 of the Decision of the Tribunal in DB Rreef Funds Management Ltd & PT Ltd v Valentino Home Fashion Pty Ltd [2008] NSWADT 332, dismissing an application by the Lessor seeking, essentially, the summary termination in its favour of proceedings 075225 (“the First Decision”). I set out below paragraphs 1 and 2 of that Decision:
- “1 In late 2002 Valentino Home Fashion Pty Ltd (hereinafter called ‘the Lessee’) was involved in negotiations concerning a lease of Shops 135, 137 and 139 at Westfield Hurstville. Those negotiations included a written offer dated 21 November 2002 from Westfield Ltd to the Lessee outlining a proposed 5 years lease at a basic annual rent of $190,000.00 and Lessor and Lessee Disclosure Statements executed in December 2002 on behalf of SAS Trustee Corporation and P.T. Ltd as Lessor and the Lessee. They culminated in such a lease being entered into between those parties in respect of those premises specifying a commencement date of 10 March 2003, an expiry date of 9 March 2008 and a permitted use of ‘the retail sale of homewares, furniture and associated décor items…’.
2After an occupancy of the premises commencing in about April 2003 the Lessee ceased to trade from, and vacated, the premises in June 2007.”
3 The history of these proceedings after 12 December 2008 can be presented in summary form as follows:
18 December 2008 - Directions that by 16 February 2008 the Lessee file and serve any application, whether in respect of time limitations, additional evidence, amendment or otherwise, together with the material relied on in support of the application.
19 January 2009 - Lessor filed Notice of Motion seeking orders that a Summons to Give Evidence, seeking production by the Lessor of documents described in an attached schedule of about a dozen pages, which the Lessee had caused to be issued by the Tribunal on 18 December 2008, be struck out.
24 February 2009 - Lessee filed an Amended Application for Original Decision (“the Second Application”). The Application for Original Decision (“The First Application”) had been filed on 4 December 2007.
2 March 2009 - Directions that any further application by the Lessee, whether in respect of extension of time or otherwise, be filed and served by 6 April 2009; that the Lessor file and serve submissions and any application by 27 April 2009; and that the Lessee file and serve submissions in response by 25 May 2009.
7 April 2009 - Lessee filed two Notices of Motion, the first being that the Second Application be accepted by the Tribunal and that the Lessor be ordered to file and serve a Defence to that within 28 days (“the First Notice of Motion”) and the second being that which is dealt with in this Decision (“the Second Notice of Motion”).
10 June 2009 - Hearing of Notices of Motion stood over to 20 July 2009 at the Lessor’s request and by consent. Directions that the Lessor file and serve submissions in response to the Second Notice of Motion by 6 July 2009; that the Lessor notify the Lessee and the Tribunal by 29 June 2009 if it seeks to oppose the First Notice of Motion.
29 June 2009- The Lessor’s solicitors wrote to the Lessor and to the Tribunal advising:
“We are instructed that in respect of the Applicant’s First Motion, our clients are prepared to consent to an order that the Applicant have leave to rely on its Amended Application, subject to the outcome of the hearing of the Applicant’s Second Motion, which may result in certain parts of the Amended Application having to be struck out. In the event limitation periods are not extended then any parts of the Amended Application which contravene those limitation periods are liable to be struck out by the Tribunal.”
4 Par.101 of the First Decision gives some further indication of the background to the situation now before the Tribunal:
- “The Lessee must appreciate that applications which it has foreshadowed in material which it has lodged with the Tribunal, should be explicitly and promptly made and prosecuted, if that is the Lessee’s intention. For example, there are references there to extensions of time and to further evidence. Also, in its Supplementary Response to Notice of Motion No.3, the Lessee purports to ‘seek to amend’ its application in respect of Grounds 1, 2 and 4 to rely on various other sections of the RL Act; that application, if it be such, was inappropriate to be dealt with on the Lessor’s Motion and was not agitated before me. I have to say also that the material which the Lessee has placed before the Tribunal fails in many parts to distinguish between matters of fact, matters of evidence and matters of argument and to meet the overall ideal of the presentation of material in concise and summary form. I commend to Mr Kelly and others involved in the control and management of the Lessee that before the next directions hearing, they give urgent and close consideration to the comments which I just made and those of a similar type that I have made in various other places in the course of the above Decision.”
5 The Second Application seeks relief under numerous Orders sought, which might be summarised as follows:
- “1.Allegations of pre-lease misrepresentations, relating to the benchmark average sales per square metre for homewares at Westfield Hurstville and the percentage rent clause and a claim for a refund of a percentage of rent in respect of loss and damage suffered.
2.Claim for a declaration that the Lessor engaged in pre-lease misrepresentations by making a false and/or misleading representation in the Lessor’s Disclosure Statement in that it did not fully set out representations made by the Lessee concerning its entry into the lease.
3.Claim for loss and damage, by way of refund of a percentage of rent, for misleading and deceptive conduct by reason of the publication to the Lessee, evidently in February 2006 of a ‘Hurstville Fact Sheet’ indicating among other things, the moving average turnovers for homewares for Westfield Hurstville, New South Wales, and National.
4.Claim for partial refund in respect of allegedly overcharged management and administrative costs.
5A.Claim partial refund of money paid for advertising and promotion, based on allegation that the Lessor failed to provide a Marketing Plan in respect of each accounting period.
5B.Claim for partial refund of money paid for advertising and promotion based on alleged pre-lease misrepresentations and alleged misleading and deceptive conduct.
6.An order that the Respondent pay to the Applicant damages or restitution resulting from the Lessor’s alleged wilful destruction of the Lessee’s property (stock fixtures and fittings) on 4-5 July 2007.
7A.Orders under s62AA of the Retail Leases Act 1994 in respect of unconscionable conduct in connection with the lease, comprising principally alleged undisclosed price discrimination in respect of rents and outgoings.
7B.In the alternative to s7A, an order in respect of the alleged failure to disclose material facts, based on ‘s10 of the Retail Leases Act, as modified by the provisions of s109 of the Constitution’. This seems to have within it as ‘Particulars No.7’ misleading and/or deceptive claims based on the same facts.
8.An order that $22,668.74 claimed by the Lessor as ‘shortfall of the balance of the lease’ (in proceedings 075192) be declared ‘not owing’. The particulars subscribed seem to have as a central allegations that the Lessor failed to mitigate its loss when it relet the premises and that in the Hurstville Fact Sheet published in 2005 the $1,212 per m2 for specialty premises ‘thereby creating the false and/or misleading impressions to the Applicant, that if the lease was terminated by the Respondent, before expiry of the term, there would be no shortfall for the balance of the lease’.
9.An order that $22,715.00 for ‘make good costs’ claimed by the Lessor (in proceedings 075192) be declared ‘not owing’. An allegation of failure to take all reasonable steps to mitigate its losses when incurring those expenses, is made.
10.An order that $45,509.96 claimed by the Lessor (in proceedings 075192) be declared ‘not owing’. An allegation of failure to take all reasonable steps to mitigate its losses is made, based on a rent free period granted by the Lessor to the new tenant.
11.An order that the Lessor’s claim (in proceedings 075192) for rent and outgoings to the balance of the termination date of the subject lease, less the amount of a bank guarantee from the Lessee which was called up by the Lessor, being a balance of $33,703.20 be declared ‘not owing’. Failure to mitigate is alleged, with assertions to the effect that the Lessor was on notice by about May 2007 that it should be looking for a new tenant.”
6 The Second Notice of Motion was heard on 20 July 2009. The first Notice of Motion was not proceeded with then on account of the Lessor’s position as stated in its Solicitor’s letter of 29 June 2009. The Lessor’s application in respect of the Summons to produce documents was stood over to a date to be fixed pending the decision on the Second Notice of Motion as that decision may effect the issues against which questions of relevance and so forth might have to be assessed.
7 At the hearing on 20 July 2009, I was assisted by a non-judicial member, Mr Harrison. The other non-judicial member, Mr Griffiths, became unavailable on account of illness and the matter proceeded without him sitting, with the consent of the parties. The assistance given by Mr Harrison has been significant and I am most grateful to have had it but the decision herein, while made in consultation with him, is mine alone.
8 At the hearing of the Second Notice of Motion, no evidence as such was tendered by the Lessee. Nevertheless, the Tribunal record as constituted by, and referred to in, the First Decision, is relevant.
9 At the outset, the following comments might be made on the Orders sought in the Amended Application:
- (a) Orders 1, 4, 5B and 7A respectively correspond with Grounds 1, 3, 4 and 2 in the First Application.
(b) Orders 6, 9, 10 and 11 relate to events in 2007 and involve no limitation period considerations.
(c) Notice concerning Orders 3 and 8 seems to be within paragraph 9 of the Lessee’s Supplementary Response to Notice of Motion No.3 filed in respect of the Lessor’s Notice of Motion, the subject of the First Decision; notice in respect of Order 5A seems to be within paragraph 33 of that Response; and notice in respect of paragraph 7B seems to be within paragraphs 1-8 of that Response. I have not readily located explicit notice of other Orders.
(d) There are common to Orders 1, 3, 4, 5A, 5B, 7A and 7B claims for refund of percentage of money paid by the Lessee to the Lessor during the lease in respect of rent and outgoings including management and administration expenses and advertising and promotion expenses.
(e) There is also common to the last-mentioned group of Orders and also Order 8 the possibility of loss or damage becoming known or apparent subsequently to the occasion of the alleged misconduct, in the sense referred to in Wardley Australia Pty Ltd v Western Australia (1992) 175 CLR 514 at 527 (quoted in par. 38 of the First Decision).
10 The Second Notice of Motion is based on Sections 71, 71A and 71B of the Retail Leases Act 1994 (“the RL Act”):
- “71 Lodging of retail tenancy claims with Tribunal
A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim.
A claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose.
(Repealed)
71A Lodging of unconscionable conduct claims with Tribunal
A lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim.
A claim may not be lodged more than 3 years after the alleged unconscionable conduct occurred.
In this section:
Lessor or lessee under a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.
71B Lodging of claims after 3 years
(1) A retail tenancy claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose, if the Tribunal orders that the claim may be lodged with the Tribunal.
An unconscionable conduct claim may be lodged more than 3 years but no later than 6 years after the alleged unconscionable conduct occurred, if the Tribunal orders that the claim may be lodged with the Tribunal.
The Tribunal may make an order under this section:
on application by the party or former party concerned, and
after hearing such of the persons likely to be affected by the application as it sees fit, and
if the applicant satisfies the Tribunal that it is just and reasonable to make the order.”
Legal Considerations
11 The Lessor submits that with respect to s71B:
- “On the assumption that this is made out at the final hearing, the Amended Statement of Claim nonetheless may not seek relief with respect to damage suffered more than six years before it is permitted to be lodged.”
12 During addresses, I drew the attention of Senior Counsel for the Lessor to Dandashli v Dandashli [1996] NSWCA 138. Leave to appeal was there sought where District Court proceedings for damages for personal injuries had been commenced prior to the Plaintiff obtaining leave under the Motor Accidents Act 1988. Section 52(1A) of that Act provided:
- “A claimant is not entitled to commence Court proceedings in respect of a claim until ninety days have elapsed after the details required by s50A were given to the other person’s insurer.”
Section 52(4) of the Act provided:
“The claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
the date of the motor accident to which the claim relates or:
…
except with the leave of the court in which the proceedings are to be taken.”
13 In his judgment in Dandashli Handley JA pointed out:
- “Where a statute imposes a condition precedent of a procedural nature which must be satisfied prior to the commencement of proceedings it will be difficult for a court to treat the condition as a condition subsequent which can be satisfied after proceedings have been commenced as that will be contrary to the intention of Parliament as expressed in the statutory language.”
He went on, however:
- “The provisions of s52(1A) appear to be of this character. However in my judgment s52(4) has a different operation. It is in the common form of a statute of limitations. Despite its language it does not impose a procedural condition precedent to be satisfied before the commencement of litigation.
The section is substantially in the same form as sections contained in bankruptcy and company legislation in Britain, Australia and elsewhere in the Commonwealth for a very long time.
In re Saunders (1966) 3 WLR 473 Lindsay J undertook a comprehensive review of the decisions over the last hundred years on provisions requiring the leave of the Court before proceedings are commenced or continued against a bankrupt or a company in liquidation.
There has been a long history of decisions that proceedings commenced without leave contrary to such provisions are not nullities but irregularities capable of being cured by the subsequent grant of leave. Lindsay J held that since the Insolvency Act 1986 has refrained from employing empathetic language making retrospective leave impossible but had used language having clear roots in the earlier statutes leave might, in appropriate circumstances, be granted with retrospective effect after the proceedings had been commenced.
Many of the cases discussed by Lindsay J were Australian cases including a number in this State. Given the long history of decisions on provisions which, in my judgment are substantially similar to s52(4), it seems to me that this Court would adopt the same interpretation of s52(4).”
14 Dandashli has been referred to on numerous occasions in the Court of Appeal, apparently with regular approval. See, in particular, Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427, especially at [32] to [42] concerning s151C of the Workers Compensation Act 1987. There is a distinction to be drawn between on the one hand, provisions the objective of which is to require the claimant to seek damages by negotiation rather than litigation in the first instance (Gordon v Berowra Holdings Pty Ltd at [37]) and on the other hand limitation provisions generally. It seems to me that this was the distinction noted by Handley JA in Dandashli between s52(1A) and s52(4) of the Motor Accident Act 1988.
15 I see these provisions of the RL Act as no more than limitation provisions. The key words used in s71 and s71A, “A...claim may not be lodged…”, and the corresponding words used in s52(4) of the Motor Traffic Act 1988 and s151C of the Workers Compensation Act 1987, “…not entitled to commence…” are different, but in my opinion, not relevantly so. It is also to be remembered that the particular words used in the Limitation Act 1969, s14 are “…not maintainable…”. In my opinion, Dandashli confirms that proceedings such as the First Application and the Second Application if instituted in contravention of s71 and s71A of the Retail Leases Act are not nullities.
16 In the event that I am wrong in the opinions expressed in the last paragraph, even proceedings commenced without compliance with a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings are not necessarily a nullity and void, having regard to considerations dealt with in Gordon v Berowra Holdings at [32] to [42]. In particular, in my opinion, s71 and s71A are not provisions that impose “incurable voidness upon non-compliant proceedings”: Gordon & Berowra Holdings Pty Ltd at [42].
17 The Lessor also submits:
- “…the Amended Statement of Claim nonetheless may not seek relief with respect to damage suffered more than six years before it is permitted to be lodged. For example, if the Tribunal on 20 July 2009 orders under s.71B that the Amended Statement of Claim may be lodged and it is lodged on that day, no relief can be granted with respect to damage suffered before 20 July 2003. The Tribunal should limit any s.71B order accordingly.”
During addresses, that position was modified to accommodate the fact that the hearing on 20 June 2009 was adjourned at the Lessor’s request, such that the Lessor now contends that no relief could be granted with respect to damage suffered before 20 June 2003.
18 As to that submission, I can see no reason why, as a matter of law, any leave granted under s71B would not relate back to at least, the date of the Second Notice of Motion, 7 April 2009. Indeed, in general, in relation to amendments and to extensions of limitation periods, the rights and liabilities of the parties should be determined as at the date of the commencement of the proceedings. See, for example, [s64.40] and [s65.25] of Ritchie’s Uniform Civil Procedure NSW. I refer to in particular in Ingot v Macquarie [No.3] [2005] NSWSC 255 where McDougall J allowed certain amendments to the initiating process, dealing with the then provisions of the Supreme Court Rules relating to amendments, including amendments relating to statute-barred claims; he said at [31] and [32] (report references have been added to the case references):
“31 It follows, in my judgment, that even if the amendments sought cannot be supported under Pt 20 r 4, they may be supported under Pt 20 r 1.
32 There is, I think, another basis upon which this conclusion can be supported. Glass JA in McGee( [1977] NSWLR 170) and Priestley JA in Proctor ((1984) NSWLR 166) made it plain that the rule in Weldon v Neal ((1887) 19 QBD 394) was a rule of practice. It followed, as Priestley JA emphasised in Proctor at 183, that the Court had always had, and retained, power to permit an amendment to introduce a statute-barred cause of action. The rule in Weldon v Heal suggested that, ordinarily, and in the absence of ‘peculiar circumstances’ the power should be exercised against the applicant; and the rules, in the words of Priestley JA ‘brought about a change of practice’ in the exercise of a power the courts had always had’. It would be quite extraordinary if that change of practice were limited to the precise situations described in sub r (3)-(5) of Pt 20 r 4: particularly where, as Glass JA accepted in McGee at 280 was the case, those sub rules ‘did not exhaust the categories of amendments which might be made after the expiry of periods of limitation’. I do not think that it can be said, in the face of Priestley JA’s analysis in Proctor, that the Court has no power apart from Pt 20 r 4 to permit an amendment to an originating process to introduce a statute-barred cause of action, even if the consequence of permitting that amendment is, absent some order to the contrary, that it relates back to the date of filing of the originating process. The analysis of Priestley JA in Proctor was explicitly confirmed by Mason P in Air Link (2003) 58 NSWLR 388) at 403 [63]-[64].”
19 Those views, which, in my opinion, I should follow, indicate that there is a general procedural discretion to permit, even in the context of claims for the potential limitation problems, amendments permitting their introduction and relation back to the filing of the originating process. The RL Act and the Administrative Decisions Tribunal Act 1997 (and the Administrative Decisions Tribunal (General) Regulations 2004) do not have detailed provisions of the sort constituted by Part 20 of the Supreme Court Rules which McDougall J had under consideration (now ss64 and 65 of the Civil Procedure Act 2005). Nevertheless, s81(1) of the Administrative Decisions Tribunal Act 1997 provides:
- “81 Amendments and irregularities
(1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice.”
It seems to me that either within the generality of that provision, or otherwise, a general procedural discretion as referred to by McDougall J is available to this Tribunal.
20 In the result, there is, in my opinion, no statutory embargo on an extension of time order being granted in respect of the Orders sought by the Lessee nunc pro tunc, and as at, or subsequent to the time of filing of the First Application. Whether there be an appropriate case established for any such extension has to be considered.
21 Extensive submissions have been made on behalf of the Lessor as to the proper construction of the words “liability or obligation” in s71(2) and 71B(1) of the RL Act. I summarise my appreciation of these submissions:
- (a) “Liability” and “obligation” have different meanings and are different concepts.
(b) Bischof v Werncog [2004] NWSADT 241 at [85] –[87] and Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354 at [121] to [131] confirm that proposition. The appeal decision in Heatherway did not deal with the issue: [2007] NSWADTAP 26.
(c) Nevertheless, to the extent that Bischof and Heatherway regarded a retail tenancy claim as potentially comprising both a “liability” and an “obligation” they were in error and should not be followed.
(d) Any individual retail tenancy claim gives rise only to one of a “liability” or an “obligation”.
(e) For the purposes of the limitation provisions in the RL Act the Tribunal, even on an interlocutory application such as this, must determine what the particular liability is or what the particular liability is and then determine when the particular obligation arose or the particular liability arose.
(f) Such determinations as are referred to in the preceding sub-paragraph could not be made on the material presently before the Tribunal.
(g) Therefore the Second Notice of Motion must fail.
22 In my opinion I should follow the approach dictated by Bischof and Heatherway. A retail tenancy claim may ultimately be found by the Tribunal to contain, in respect of a particular Order sought, either a relevant “liability” or a relevant “obligation” such as to warrant an order under s72 of the RL Act. That is not an issue to be determined in an interlocutory application such as this. This application is for the discretionary grant of extensions of time and/or leave to proceed; it is not akin to one which may give rise to summary termination of the proceedings (cf Wardley Australia Ltd v Western Australia (1992) 175 CLR 314 at 533 quoted in the First Decision at [39] and also as referred to at [34] thereof).
23 If any of the views which I have expressed above as to the construction of the RL Act were perceived to need any reinforcement, I would draw support from the categorisation of the RL Act as remedial legislation and the consequent appropriateness for it to be interpreted liberally. See [15] of the First Decision.
24 A submission was made on behalf of the Lessee based on s109 of the Commonwealth Constitution to the effect, as I understand it, that any construction of any limitation provision in the RL Act which would yield a result different to the 6 years specified in s82(2) of the Trade Practices Act 1974, would mean that provision in the RL Act was, to the extent of the inconsistency, invalid. That provision is:
- “An action under sub-section (1) may be commenced within 6 years after the day on which the cause of action that relates to the action arose.”
During addresses, I queried whether this submission might require notice to be given under s78B of the Judiciary Act 1903. Senior Counsel for the Lessor pointed out that in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77, there was a ruling that this Tribunal was not a court of a State for the purposes of the Commonwealth Constitution s77(iii). Senior Counsel has since referred the Tribunal (and Mr Kelly) to AG v 2UE Sydney Pty Ltd [2006] NSWCA 349, 226 FLR 62 where the Court of Appeal held that this Tribunal had no jurisdiction to determine whether New South Wales legislation should be read down because of issues arising under the Commonwealth Constitution. In any event, it seems to me the various constructions which I have made of the RL Act above could not be said to be contrary to the scheme of the Trade Practices Act provision and that consequently the Lessee’s point does not arise. In these circumstances, I deal with this submission no further.
Discretionary Considerations
25 I have to assess the relief sought in the Second Notice of Motion on the basis of what is “just and reasonable”. The interests of the administration of justice have to be determined. Overall, I have concluded that the following are dominant considerations:
- (a) Significant parts of the Orders sought in the Second Application were within the First Application.
(b) A number of the Orders sought relate to alleged situations of developing loss and/or loss becoming known or apparent subsequently.
(c) All the Orders sought arise out of substantially the same set of facts. Only some of the Orders sought need leave under s71B of the RL Act.
(d) To a substantial extent, notice was given some time ago of the amendments involved in the Orders now sought.
(e) The proceedings have a significant history already. There is a need to get these proceedings to a hearing and due disposition.
(f) I am not persuaded that the Lessee is doing anything more than seeking to raise all grounds which it perceives it has in respect of its complaints against the Lessor. Putting that another way, I am not persuaded that the Lessee is seeking the subject relief for any purpose ulterior to the proper prosecution of the proceedings.
(g) I do not see any particular added inconvenience, or prejudice, to the Lessor if the subject relief were to be granted.
(h) The amendments as such have been consented to, subject only to the remaining interlocutory issue of leave under s71B of the RL Act.
(i) While the filing of the Second Application did not accord with the directions made on 18 December 2008, that situation was eventually retrieved by the filing of the First and Second Notices of Motion.
All these considerations seem to me to be favourable to the Lessee’s position.
Conclusion.
26 The legal and discretionary considerations which I have dealt with above lead me to the view that it is just and reasonable to grant the relief sought in the Second Notice of Motion. They also lead me to conclude that such relief should be granted as at the date of the First Application.
Orders
1. As at 4 December 2007, the Applicant’s unconscionable conduct claim or claims made in the Amended Application for Original Decision in proceedings 075225 may be lodged to include conduct in connection with the subject lease, more than 3 years but no more than 6 years after the alleged unconscionable conduct occurred.
2. As at 4 December 2007, each of the Applicant’s retail tenancy claims made in the Amended Application for Original Decision in proceedings 075225 may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose.
3. Proceedings 075192 and 075225 are listed for a directions hearing on August 25, 2009 at 9.30am
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