Fordham Laboratories Pty Limited v Sor - [2011] NSWSC 706

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 1970
Cases 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 215
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 706
Decision Date: 08 July 2011

CaseChat Overview and Summary

The parties involved in this case are Fordham Laboratories Pty Limited, the appellant, and Sor, the respondent. The nature of the dispute pertains to a retail lease agreement where the respondent had sublet the premises to another party. The Retail Leases Act was invoked, specifically section 68, which concerns the conditions under which proceedings can be initiated. The case was heard in the Supreme Court of Victoria.

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.

Orders