Goodlink Pty Ltd v Sing

[1999] NSWADT 71

CITATION:	Goodlink Pty Ltd v Sing & Ors [1999] NSWADT 71
DIVISION:	Retail Leases
APPLICANT:	Goodlink Pty Limited
RESPONDENT:	Sing Chia Tan, Ming Lu, Chong Chin Ong, Australian Property & Management Pty Limited
FILE NUMBER:	995008
HEARING DATES:	07/30/1999
SUBMISSIONS CLOSED:	07/30/1999
DATE OF DECISION:	30 July 1999
BEFORE:	B Donald - Judicial Member
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Principal matter and jurisdiction
REPRESENTATION:	Applicant: T Wu, representing the applicant Respondent: D Groundwater, solicitor
ORDERS:	1. Application dismissed. 2. Question of costs reserved.

1 This matter illustrates the limited and, in my view, overly precise way in which the Retail Leases Act 1994 operates so as not to be available in what I think most ordinary people would consider to be a retail lease environment.

2 The applicant, Goodlink Pty Limited, has asserted that it negotiated to finality a lease of premises advertised and offered as a retail shop by owners represented by Australian Property & Management Pty Limited as their agent. The proposed use was as a real estate agency. The lease (admitted as Exhibit A) was negotiated between the parties and their solicitors within the provisions of the Retail Leases Act. A disclosure statement (Exhibit C) under that Act was provided by the lessors, and the lessors' solicitors, by letter dated 7 April 1999 (Exhibit D), referred to the Retail Leases Act as applying.

3 The applicant asserts in its application that, following finalisation of the negotiations between the solicitors, it signed and submitted the lease with the necessary payments and then asked the agent's office for a key, which was provided. The applicant asserts that it accordingly took possession of the premises. This was prior to the execution of the lease on behalf of the lessors, whose solicitors had stated due execution was a pre-condition to the lease becoming binding.

4 I note in that regard that section 8 of the Retail Leases Act would have cured this for the lessee as it deems a lease to commence on entry into possession regardless of non-execution.

5 For unexplained reasons, the applicant asserts that the lessors' agent then claimed that the lease was not duly executed and that the lessee was not entitled to enter into possession and, accordingly, the lease had not commenced. The applicant asserts that the lessors' agent then sent an armed private security service to take control of the premises and eject the lessee.

6 In those circumstances, the applicant has chosen to pursue a remedy at this stage before this Tribunal rather than before the courts, although it should be noted that the unavailability of a remedy here will not preclude such action.

7 The right to use this Tribunal is circumscribed by the very precise and limiting provisions of definition of "retail shop" in section 3 of the Retail Leases Act which confine the Act to either single retail shops (category (a) within the definition) being those businesses listed in Schedule 1, which Parliament obviously decided would not include retail real estate agencies (or real estate agencies generally) or, alternatively, under category (b) of the definition the premises must form part of a "retail shopping centre" as separately defined. That definition in section 3 accordingly determines whether the applicant can proceed before this Tribunal or must pursue its rights elsewhere.

8 Four criteria are listed, all of which must be satisfied for a group or cluster of premises to be a retail shopping centre.

9 In this matter it was agreed that paragraphs (b) and (c) were satisfied because the shop in question was one of seven in a single strata plan and they are in one building. The respondent lessors contended that paragraphs (a) and (d) did not apply and, despite having negotiated the lease under the Act, now contend that the Act cannot apply.

10 The applicant and the respondent both led evidence relevant to this jurisdictional issue through Mr Timothy Wu, representing the applicant, and Mr Harry Londy, the lessors' agent.

11 In relation to paragraph (d), Mr Wu's evidence included statements signed by three people to the effect that they regarded the shops as variously a "shopping arcade", a "small shopping centre" or a "shopping court". Mr Wu also quoted his former employer at Century 21, who he said was a real estate agent of some years' experience, as being of the same view and he also quoted a conversation with a sales representative of the developer. These people were not present and I rejected an application to suspend the proceedings to allow them to be brought before the Tribunal. In my view, their evidence would not have advanced the matter substantially for reasons I will later point out.

12 Mr Londy gave evidence of his own views in this particular regard.

13 In my view, the Tribunal should have regard to the ordinary meaning of the expressions in this limiting definition as well as the opinions of particular witnesses or those with whom they say they have spoken.

14 On the evidence before me, and applying what I consider to be the ordinary meanings, this shop does not form part of a cluster of premises within paragraph (d).

15 There are seven shops with street frontages to Day and Bathurst Streets. Two have substantial direct access also from the lobby of the Millennium Tower, a residential tower building of which they are the ground floor. The others may have some rear access, but the principal commercial orientation is to the street.

16 There is, in my mind, no doubt that they are not part of either a shopping centre or a shopping mall. In ordinary meaning, I consider that a shopping centre means a substantial collection of shops which are together identified as forming part of a central place for shopping. A shopping mall clearly denotes shops facing a common pedestrian area. Nor do I think these shops would be generally regarded as an arcade or court. An arcade traditionally means a grouping of shops along an identified walkway and takes its meaning historically from the sense of being covered by an arch, although it may have moved well beyond that in modern commercial usage. A court, in my view, constitutes a group around a common publicly accessible space from which access to all the shops is possible.

17 Therefore, I do not think that the views of the people quoted by Mr Wu are sufficient to outweigh the generally accepted meaning of those expressions as used in the definition.

18 Nor does the evidence establish that these premises were "promoted" as a shopping centre, mall, court or arcade. In fact I think the applicant virtually acceded to this point. The premises clearly were and will continue to be promoted as retail shops but, given the terms of the Act, this of itself, in my view, is not sufficient.

19 It is not necessary to decide whether paragraph (a) of the definition is satisfied. The respondent lessors relied on the vacancy of all seven shops as disposing of this point, but I do not necessarily agree with this. In my view, evidence of use of premises adjacent would have been relevant were it necessary to decide this point.

20 This, of course, leaves the applicant to pursue its rights in the courts under the ordinary principles of contract in the case of Masters v Cameron (1954) 91 CLR 353 as to whether, notwithstanding no execution by the lessor, the degree of negotiation and the conduct of the parties there was a valid lease in this particular case. See also Summertime Holdings Pty Limited v. Environmental Defender's Office Limited Young J., NSW Supreme Court, 28 September 1998. That is a matter on which the applicant should seek appropriate advice and make a decision as to the pursuit of its rights.

21 As to section 74 of the Retail Leases Act, which obliges this Tribunal to endeavour at all stages of the proceedings before making any order, including an order dismissing the application, to bring the parties to a settlement acceptable to all of them, I note on the record that a mediation under subsection (2) of section 74 had not been successful and I regret that the parties declined my suggestion at the beginning of today's proceedings to seek a settlement of the matter.

22 On the face of it I would have thought that, notwithstanding claims from both sides of unnecessary resort to force and threats, there ought to be, given the level of negotiation of the detail, a basis for an appropriate commercial settlement and I would encourage the parties, notwithstanding my decision on jurisdiction, to enter into such negotiations short of the applicant pursuing its rights in the courts.

23 Accordingly, the Tribunal must dismiss the application. Notwithstanding a suggestion earlier today as to proceeding to the substantive issues, I will stand the matter over pending any desire by the applicant to challenge the ruling I have made on jurisdiction and, if successful, have the matter returned for hearing on the substantive issues.

24 That then leaves the question of costs in the matter. Before hearing from the parties, I should say this: Costs are currently being considered in a reserved decision by the President of the Tribunal. The issue fully argued before the President was whether costs are discretionary in this jurisdiction or whether they, within this Act and within the Administrative Decisions Tribunal Act, follow the event. Subject to what I hear from the parties, I would suggest that the question of costs be stood over pending that decision, as it will be a fully argued and considered decision. The decision is due to be handed down within one week and would be sent to the parties by the registry.

25 I propose to reserve on the question of costs until the decision is handed down and then I will make a decision on costs and notify the parties.