Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706 Hearing dates: 6 May 2011 Decision date: 08 July 2011 Before: Price J Decision: Leave to appeal granted.
Appeal allowed.
The judgment of Bradd LCM delivered on 3 September 2010 be set aside.
The matter is remitted back to Bradd LCM to be heard and determined according to law.
The first respondent (Kim-Po Sor) and the second respondent (Vattanak Im) are to pay the applicant's (Fordham Laboratories Pty Limited) costs on an ordinary basis.
Catchwords: RETAIL LEASES - section 68 - Retail Leases Act -whether mediation is a condition precedent to commencing proceedings. Legislation Cited: Interpretation Act 1987
Retail Leases Act 1994
Supreme Court Act 1970Cases Cited: Bigdale Pty Ltd T/as Enigma at the Royal Motor Yacht & Anor v Royal Yacht Club of NSW Port Hacking Branch [2010] NSWSC 1196
GPT Management Ltd v Spa Heaven Pty Ltd [2005] NSWSC 1043
McDonald's Australia Limited v Challenger Property Nominees Pty Limited [2003] NSWSC 963
Musgrave v Greenfields Mountain Pty Ltd and Anor [2002] NSWSC 668
Oriental Carpet Department Store Pty Ltd v Supacenta Pty Ltd [2003] NSWSC 783; (2003) 11 BPR 21
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 The Queen against Moore and Others; Ex parte The New South Wales Public Service Professional Officers' Association [1984] HCA 45; (1984) 154 CLR 1
Ticehurst v Cross [2005] NSWSC 574; (2006) NSW ConvR 56-136
Western Australia Bank v Royal Insurance Co [1908] HCA 11
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Wilson v Sydney Markets Ltd (No 3) [2010] NSW ADT 215Category: Procedural and other rulings Parties: Fordham Laboratories Pty Limited (Applicant)
Kim-Po Sor (First Respondent)
Vattanak Im (Second Respondent)Representation: I Hemmings (Applicant)
B Pluznyk (First Respondent)
D Carbone (Second Respondent)
McDermott & Associates (Applicant)
Demitrios Pserras Pserras Lawyers (First Respondent)
Dominic Carbone Sydney Law Practice (Second Respondent)
File Number(s): 2010/325887
Judgment
This appeal from a decision of a magistrate of the Local Court raises a point of statutory construction. The statutory provision concerned is s 68 of the Retail Leases Act 1994 (the Act). The point raised in the sole ground of appeal that has been proceeded with, is whether his Honour erred in law by construing s 68 so as to prevent the commencement of proceedings in the Local Court before the applicant had complied with the provisions of the section.
Section 68 which falls within Part 8 Division 2 of the Act is in the following terms:
"68 Disputes and other matters must be submitted to mediation before proceedings can be taken
(1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve…
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- Case
- [2011] NSWSC 706
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether mediation was a condition precedent to the appellant's right to commence proceedings under section 68 of the Retail Leases Act. The appellant argued that mediation was not a necessary prerequisite before initiating court action, while the respondent contended that mediation must occur before any legal proceedings could be brought. The court was required to interpret the statutory language and determine the legislative intent regarding the mediation requirement.
In delivering the judgment, the court examined the plain language of the statute and considered the context in which section 68 was enacted. The court found that the statutory language did not explicitly require mediation as a condition precedent to commencing proceedings. The court further reasoned that imposing such a requirement would not align with the overall legislative intent, which was to provide a streamlined process for resolving disputes under retail lease agreements. Consequently, the court concluded that mediation was not a condition precedent and that the appellant had the right to commence proceedings directly.
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