HR & CE Griffiths P/L v Rock Bottom Fashion Market P/L

[1997] QSC 1

IN THE SUPREME COURT

OF QUEENSLAND  No. 9298 of 1996

[H.R. & C.E. Griffiths P/L v. Rock Bottom Fashion Market P/L & Anor]

BETWEEN:
  H.R. & C.E. GRIFFITHS PTY LTD
  (ACN 004 948 823)
  Plaintiff

AND:
  ROCK BOTTOM FASHION MARKET PTY LTD
  (ACN 010 888 141)
  First Defendant

AND:

DONALD JAMES INNES and KATHY ADELLE INNES

Second Defendant

REASONS FOR JUDGMENT  -  THOMAS J

Delivered:7 January 1997

CATCHWORDS:     LANDLORD AND TENANT - Retail shop lease - Retail tenancy dispute - Claim for possession in Supreme Court - Whether Retail Shop Lease Tribunal has exclusive jurisdiction.

Whether the Tribunal has jurisdiction to determine a dispute referred to it at a time when parties are no longer in a relationship of landlord and tenant, i.e. after a lease has been terminated - Suncorp Insurance and Finance v. Retail Shop Lease Tribunal [1995] 2 Qd. R. 429 distinguished.

Whether questions as to the validity of the exercise of an option and of entitlement to ejection are disputes "under or about a retail shop lease" and therefore within the exclusive jurisdiction of the tribunal if referred in time.

Whether the Supreme Court's jurisdiction in relation to ejectment is excluded when the Tribunal assumes jurisdiction on the issue whether an option has been validly exercised.

Sections 88, 94, 109 Retail Shop Leases Act 1994.

Counsel:Mr M. Gynther for the Plaintiff

Mr D Innes for the First and Second Defendants

Solicitors:Sykes Pearson and Miller for the Plaintiff

Hearing Date:   12 December 1996

IN THE SUPREME COURT

OF QUEENSLAND  No. 9298 of 1996

[H.R. & C.E. Griffiths P/L v. Rock Bottom Fashion Market P/L & Anor]

BETWEEN:

H.R. & C.E. GRIFFITHS PTY LTD
  (ACN 004 948 823)
  Plaintiff

AND:

ROCK BOTTOM FASHION MARKET PTY LTD
  (ACN 010 888 141)
  First Defendant

AND:

DONALD JAMES INNES and KATHY ADELLE INNES

Second Defendant

REASONS FOR JUDGMENT  -  THOMAS J

Delivered 7 January 1997

This is an application for summary judgment for possession against the lessee company (Rock Bottom Fashion Market Pty Ltd) for mesne profits against the lessee company, and for moneys due from the guarantors in respect of the company's liability on the latter claim.
           A preliminary point has been taken on behalf of the defendants arising from the fact that the relevant lease is a "retail shop lease" under the Retail Shop Leases Act 1994. The submission is that essential issues in the present application are a "retail tenancy dispute" under that act. It is contended that the dispute has been already referred to the Retail Shop Lease Tribunal ("the Tribunal"), and that under s. 94 of the act, the jurisdiction of that Tribunal, in the circumstances of the present case, is exclusive.
           The lease in question is a written lease with a commencement date of 1 November 1995 and an expiry date of 31 October 1996.  The lease provided for an initial three-year option upon the giving of prescribed notice by the lessee.
           There is a dispute between the parties as to whether the option was validly exercised.
           On 30 October 1996 the defendants gave notice of dispute to the plaintiff and to the Tribunal.  The main points of dispute listed in the notice included some monetary claims and "the valid renewal of the first option under the lease".  Further details of this were given under "Main Points of the Dispute" including a claim that the option had been exercised both orally and in writing.
           On 1 November 1996 the plaintiff lessor issued its writ in the present matter and served it on two of the defendants a few days later.  All defendants were represented, by leave, by Mr Innes who is the male defendant and a director of the first defendant.
           The procedure contemplated under the Retail Shop Leases Act for the resolution of disputes includes an initial reference to mediation, and, in the event of failure of the mediation, a hearing by the Tribunal.  In the present case the chief executive, apparently under s. 56 of the act, on 6 November 1996 nominated a mediator to mediate the dispute.  In due course a date was notified to the parties for mediation, but the plaintiff lessor did not attend.  There was therefore no successful mediation of the dispute, and the mediator, apparently under s. 63, referred the dispute to the chief executive, who, under s. 65 appointed a Tribunal to hear the dispute.  A directions hearing took place on 11 December 1996, and a date for hearing before the Tribunal was set to commence on 17 February 1997.
           I understand it to be common ground that the lease in question, which is for a shop in a shopping centre at Arcadia Walk, Noosa Junction, was "a retail shop lease" for the purposes of the act.
           Relevant provisions (unfortunately extensive) in the Retail Shop Leases Act 1994 include the following.

"'lease' means an agreement under which a person gives or agrees to give to someone else for valuable consideration a right to occupy premises whether or not the right is -

(a)an exclusive right to occupy the premises; or

(b)for a term or by way of a periodic tenancy or tenancy at will.

'lessee' in relation to a retail tenancy dispute includes the former lessee.

'lessor' means the person who, under a lease, is or would be entitled to the rent payable for the leased premises regardless of the person's interest in the premises, and includes -

(a)the lessor's agent;  and

(b)in relation to a retail tenancy dispute - the former lessor.

'retail tenancy dispute' means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.

. . .

Lodgment of retail tenancy disputes

55.(1)   A party to a retail tenancy dispute that is within a mediator's jurisdiction under section 97 (Mediators' jurisdiction) may lodge notice of the dispute with the chief executive.

(2)The notice ('dispute notice') must be in the approved form and accompanied by the fee prescribed by regulation.

. . .

Reference of dispute - by mediator

63.(1)This section applies if -

(a)a retail tenancy dispute is within a tribunal's jurisdiction and -

(i)the parties cannot reach a mediated solution to the dispute;  or

(ii)a party to the dispute does not attend the mediation conference for the dispute;  or

(iii)the dispute is not settled within 4 months after the dispute notice is lodged;  and

(b)The retail shop lease has not ended (whether by expiry, surrender or termination) more than 4 months before the dispute notice was lodged.

(2)  The mediator must, by written notice given to the chief executive, promptly refer the dispute to the chief executive.

. . .

Chief executive to refer dispute to tribunal

65.Within 14 days after a retail tenancy dispute is referred to the chief executive, the chief executive must -

(a)appoint a tribunal from the tribunal panel to hear the dispute;  and

(b)give written notice to the tribunal panel members of their appointment to hear the dispute;  and

(c)give written notice to the parties to the dispute of the appointment and composition of the tribunal to hear the dispute.

. . .

66.(1)   Before the retail tenancy dispute is heard by the tribunal, the chairperson may decide to hold a directions hearing.

. . .

(5)Without limiting subsection (4), the tribunal may make decisions and give directions about -

(a)questions of law;  and

(b)the tribunal's jurisdiction;  and

(c)discovery and inspection of documents;  and

(d)the parties' representation at the dispute hearing.

. . .

69.(1)The tribunal's hearing of the retail tenancy dispute is not open to the public.

(2)  However a person may attend the tribunal's hearing with the agreement of the tribunal and the parties to the dispute.

. . .

70.The following persons are entitled to appear at the tribunal's hearing of the retail tenancy dispute -

(a)the parties to the dispute;

(b)a person granted leave to appear by the tribunal.

. . .

Procedure

72.(1)When conducting the hearing the tribunal must -

(a)observe natural justice;  and

(b)act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it.

(2)In conducting the hearing, the tribunal -

(a)is not bound by the rules of evidence;  and

(b)may inform itself of any matter in the way it considers appropriate;  and

(c)may decide the procedures to be followed for the hearing.

(3)However, the tribunal must comply with this subdivision and any procedural rules prescribed by regulation.

. . .

Tribunals' orders

83.(1)The tribunal may make the orders the tribunal considers to be just to resolve the retail tenancy dispute.

(2)Without limiting subsection (1), the tribunal may make any 1 or more of the following orders -

(a)an order for a party to the dispute to do, or not to do, anything (an 'enforcement order');

(b)an order requiring a party to the dispute to pay an amount (including an amount of compensation) to a specified person (a 'payment order');

(c)an order that a party to the dispute is not required to pay an amount to a specified person;

(d)an order setting aside the mediation agreement between the parties to the dispute;

(e)an order that an item, or part of an item, of the lessor's outgoings for the retail shopping centre or leased building in which the leased shop is situated was or was not reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building;

(f)if the dispute is about the payment of compensation by the lessor to the lessee under the retail shop lease and the lease contains provision for the amount of compensation payable or a formula to calculate the amount of compensation payable - an order that the amount of compensation payable under the lease is reasonable;

(g)an order giving effect to a settlement agreed on by the parties to the dispute.

(3)An order may specify a time for compliance with it.

(4) If the person against whom the order is made is not present when the order is made, the chief executive must serve a copy of the order on the person as soon as practicable after it is made.

Enforcement of certain tribunal orders

84.(1)This section applies if the tribunal makes an enforcement order.

(2)The person in whose favour the order is made may enforce the order by -

(a)filing in the Supreme Court's registry -

(i)a copy of the order certified by the chief executive to be a true copy;  and

(ii)the person's affidavit about the failure of the person against whom the order is made to comply with the order;  and

(b)serving a copy of each of the documents mentioned in paragraph (a) on the person against whom the order was made.

(3) If the registrar of the Supreme Court is satisfied there has been, and still exists, a failure to comply with the order, the registrar must endorse a certificate of noncompliance on the copy of the order.

(4)The endorsed order is taken to be a properly entered order of the Supreme Court and may be enforced accordingly.

. . .

Tribunal's order final and binding

87.      The tribunal's order is final and binding on each party to the retail tenancy dispute, whether or not the party has appeared or been represented at the tribunal's hearing.

Restricted right to question tribunal's hearing and order

88.      The tribunal's hearing of the retail tenancy dispute and the tribunal's order must not be questioned in a proceeding other than a proceeding based solely on either or both of the following grounds -

(a)the tribunal had or has no jurisdiction, or has exceeded its jurisdiction, in the hearing or in making the order;

(b)there has been a denial of natural justice.

. . .[This privative clause is protected by Schedule 1 of the Judicial Review Act, thereby preserving its full force and effect.]

Exclusion of other jurisdictions

94.(1)   On and after the lodgment of a dispute notice for a retail tenancy dispute, the dispute must not be referred to arbitration or heard by any court.

(2)Subsection (1) does not apply if -

(a)the dispute is withdrawn;  or

(b)a proceeding about the issue in dispute was started in a court before the dispute notice was lodged and the proceeding has not been removed to a tribunal;  or

(c)an application for an order in the nature of an injunction about the issue in dispute is made to a court;  or

(d)a mediator or tribunal refuses to mediate or hear the dispute because the mediator or tribunal is of the opinion the dispute is not within the jurisdiction of a mediator or tribunal;  or

(e)the mediator cannot reach a solution to the dispute and a tribunal does not have jurisdiction to hear the dispute.

(3)For subsection (2)(b), a proceeding is taken to have been started before a court if the lessor has -

(a)served on the lessee a notice under section 124 of the Property Law Act 1974 (Restriction on and relief against forfeiture);  or

(b)given to the lessee a notice under section 131 of the Property Law Act 1974 (Form and contents of notice).

. . .

Mediators' jurisdiction

97.(1)A mediator has jurisdiction to mediate retail tenancy disputes, other than a retail tenancy dispute -

(a)about an issue between the parties that -

(i)is the subject of arbitration;  or

(ii)has been the subject of an award (interim or final) in an arbitration proceeding;  or

(iii)is before, or has been decided by, a court;  or

(b)about -

(i)arrears of rent under a retail shop lease;  or

(ii)the amount of rent payable under a retail shop lease;  or

(iii)the amount of a lessor's outgoings under a retail shop lease;  or

(c)under a retail shop lease for the carrying on of the business of a service station if the Petroleum Retail Marketing Franchise Act 1980 (Cwlth) applies to the carrying on of the business under a franchise agreement within the meaning of that Act.

(2) For subsection (1)(a)(i), a retail tenancy dispute is only the subject of arbitration if the arbitration proceeding has started.

(3)However, a mediator has jurisdiction to mediate a retail tenancy dispute about -

(a)the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent;  or

(b)the basis on which lessor's outgoings are payable by, and the procedure for charging lessor's outgoings to, a lessee under a retail shop lease, but not the actual amount of the outgoings;  or

(c)whether an item, or part of an item, of the lessor's outgoings for the retail shopping centre or leased building in which a leased shop is situated was reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building.

. . .

Tribunals' jurisdiction

109.(1) A tribunal has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute -

(a)about an issue between the parties that -

(i)is the subject of arbitration;  or

(ii)has been the subject of an award (interim or final) in an arbitration proceeding;  or

(iii)is before, or has been decided by, a court;  or

(b)about -

(i)arrears of rent under a retail shop lease;  or

(ii)the amount of rent payable under a retail shop lease;  or

(iii)the amount of a lessor's outgoings under a retail shop lease;  or

(c)if the amount, value or damages in dispute is more than the monetary limit of a District Court within the meaning of section 66 of the District Courts Act 1967 (District Courts' civil jurisdiction);  or

(d)under a retail shop lease for the carrying on of the business of a service station.

(2) For subsection (1)(a)(i), a retail tenancy dispute is only the subject of arbitration if the arbitration proceeding has started.

(3)However, a tribunal has jurisdiction to hear a retail tenancy dispute about -

(a)the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent;  or

(b)the basis on which lessor's outgoings are payable by, and the procedure for charging lessor's outgoings to, a lessee under a retail shop lease, but not the actual amount of the outgoings;  or

(c)whether an item, or part of an item, of the lessor's outgoings for the retail shopping centre or leased building in which a leased shop is situated was reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building.

Tribunal's general powers

110.(1) A tribunal may do all things necessary or convenient to be done for, or in relation to, the performance of its function.

(2)Without limiting subsection (1), a tribunal has the powers conferred on it by this Act.

(3) Without limiting subsection (1), a tribunal may make, or cause to be made, the investigations it considers necessary for its hearings, including, for example, investigations about current market management costs and fees for the retail shopping industry.

Transfer of hearings between tribunals and courts

111.(1) If a proceeding about a retail tenancy dispute is started in a court and a tribunal has jurisdiction to hear the dispute, the court may, on the application of a party, order that the proceeding be removed to a tribunal.

(2) If a tribunal is of the opinion that a retail tenancy dispute being, or about to be, heard by the tribunal should be heard by a court, the tribunal may order that the dispute be removed, in whole or part, to a court.

Admissions made during dispute resolution process

115.(1) Evidence of anything said in a mediation conference for a retail tenancy dispute is not admissible in any proceeding before any court or a tribunal.

(2) Evidence of anything said in a tribunal's hearing of a retail tenancy dispute is not admissible in any proceeding before any court."

The main submissions advanced on behalf of the plaintiff lessor are that the option was not exercised, the lease has expired by effluxion of time and has not been renewed, and that the disputes are not "under or about a retail shop lease".  The latter submission is based on the fact that no retail shop lease any longer exists.  Alternatively it is submitted that questions such as validity of the exercise of an option, and of entitlement to ejectment are not disputes under or about a retail shop lease within the meaning of the Act.
           In the present case, on any view of the matter, the dispute notice was lodged before the expiry or termination of the relevant lease.
It is also common ground in the present matter that no notices of the kind referred to in s. 94(3) had been given before the dispute notice was lodged.
I reject the submission of counsel for the plaintiff that the fact that the chief executive did not refer the matter to a mediator under 6 November 1996 means that the notice of dispute was not lodged until that date. The notice of dispute in my view was "lodged" on the date it was received by the Chief Executive, namely 30 October 1996. It follows that there was, under s. 94(1), a lodgment of a dispute notice, and that no exception can be made that the "proceeding about the issue in dispute was started in a court before the dispute notice was lodged" (s. 94(2)(b)).
           Under the previous act, the Retail Shop Leases Act 1984, it had been held that the Tribunal lacked jurisdiction to determine a dispute referred at a time when the parties were no longer in the relationship of landlord and tenant (Suncorp Insurance and Finance v. Retail Shop Lease Tribunal [1995] 2 Qd.R. 429). In that case Dowsett J applied the reasoning of three Victorian decisions concerning legislation similar to the 1984 Queensland act (Jam Factory Pty Ltd v. Sunny Paradise Pty Ltd [1989] VR 584, 586; Klewet Pty Ltd v. Landsdown [1989] VR 969; Haidar v. Blendale Pty Ltd [1993] 2 VR 524). The jurisdiction of a mediator under the former legislation was essentially "to hear disputes between landlords and tenants under retail shop leases . ." (s. 20(1) of the 1984 act). The thrust of the reasoning of Dowsett J and of the Victorian decisions is that the references in that act to retail shop lease and to disputes under retail shop leases should be taken in the present tense, that is to say to apply to persons in the relationship of lessor and lessee at the time of reference of the dispute.

           The 1994 act expresses similar objects to those of the previous act.  It was a new act drawn after receipt of extensive submissions and in some respects it extended the protection intended to be given to retail shop lessees.  There are some respects in which the ambit of disputes that are intended to be entrusted to the Tribunal is extended.  Principally these extensions are to be found in the definition of "retail tenancy dispute", which extends the earlier phrase "disputes . . under retail shop leases" to "any dispute under or about a retail shop lease . .", and in the definitions of the terms "lessor" and "lessee" which now include the former lessor and former lessee.  That, I think, shows an intention to eliminate the present tense limitation which the Suncorp Insurance case had imposed upon the jurisdiction of the Tribunal.  In other words I do not think that it is now possible to deny the jurisdiction of the Tribunal on the ground that at the time of reference the lease had been terminated.
           It is apparent however that the extended jurisdiction is limited to past leases which have ended within four months of the reference.  The sections dealing with referrals of disputes to the Tribunal (ss. 63 and 64) preclude such references if the lease has ended (whether by expiry, surrender or termination) more than four months before the dispute notice was lodged.  Disputes in relation to retail shop leases that have ended within that period are within the contemplation of being dealt with by the Tribunal if certain other factors (e.g. those in s. 63(1)(a) or s. 64(2)(a)) are present.  These provisions resemble special limitations provisions and generally speaking may be taken as intended to permit access to the Tribunal only of fresh disputes.  The tribunal is given express power to "make decisions and give directions about the tribunal's jurisdiction" (s. 66(5)(b)).  Despite the recognition of this power to determine jurisdictional facts, and the limitation upon judicial review and prerogative relief (ss. 88 and 94 of the Act), I do not think that the tribunal has been given the right to make jurisdictional errors, or wrongfully to assume jurisdiction free from prerogative review.
           The difficulty in the present case is to determine just what disputes have been entrusted to the potentially exclusive jurisdiction of the Retail Shop Lease Tribunal.  It is at least arguable that questions such as whether a lease has been validly terminated, whether an option has been validly exercised, or whether a landlord is entitled to possession are not issues upon which potentially exclusive jurisdiction has been conferred upon the Tribunal.  At first glance the tribunal has very wide jurisdiction but on closer scrutiny the dividing line between the jurisdiction of this court and that of the tribunal is not easy to see.  It is at least contemplated that some disputes will be properly before the Tribunal notwithstanding that a lease has ended before a dispute notice has been lodged.  The submission for the lessee that past leases are not within the tribunal's jurisdiction must be rejected because the present reference was made within time on any view of the matter, and would not fail even on the reasoning of Suncorp Insurance v. Retail Shop Lease Tribunal.
The real question in the present matter is whether the Tribunal now has exclusive jurisdiction in matters such as ejectment and the determination of the exercise of option rights. Curiously in its defence to the present proceedings the lessee seeks relief against loss of the lessee's option, under s. 128 of the Property Law Act. Such relief would be available in this court but not elsewhere (see s. 128(5)). Even the District Court, which has wide powers of relief in ejectment under s. 68 of the District Courts Act, and which is expressly given, by s. 70 of the District Courts Act, the powers and authorities of the Supreme Court under ss. 124, 125 and 127 of the Property Law Act, does not have the power to grant such relief.  This makes it difficult to think that the traditional jurisdiction of the Supreme Court has been taken away in favour of a tribunal that lacks the power to grant the same remedies.  The powers of the Retail Shop Lease Tribunal are wide, and its decisions may be reached upon evidence that would not be admissible in a court of law.  It may inform itself as it sees fit, and is not bound by the rules of evidence (s. 72).  It has power (under s. 82(1)) to make whatever orders if it "considers to be just to resolve the retail tenancy dispute".  Now while it (subject to natural justice) is not circumscribed by rules of procedure or evidence, it in my view bound to apply the ordinary rules of law.  It may not bend these in order to fashion a result which may seem subjectively to the tribunal to be fair.  If I am correct in this view, there is an immediate problem, which has never been addressed by the Retail Shop Leases Act 1994, or its predecessor, in relation to a remedy such as ejectment. The Supreme Court and the District Court have powers of relief against forfeiture and associated powers under ss. 124, 126 and 127 of the Property Law Act.  But the tribunal does not.  It has no inherent jurisdiction, and such powers in my view would need to be expressly conferred.  It is not enough to say that it can do whatever it considers to be "just".  It must still apply the law.  Neither is there any reference in the Act to relief by way of ejectment or orders by way of eviction.  Whilst it is only of slight weight the absence of any mention of orders of that kind in s. 83(2) may strengthen the view that the legislature did not have this jurisdiction in mind when it created a potentially overlapping jurisdiction between the tribunal  and the Supreme Court and gave pre-eminence to the tribunal with respect to dispute notices already lodged with the tribunal.
           Little assistance is to be found in the lengthy "explanatory notes" 1994 (vide pp. 572, 582, 584-586) or the second reading speech, upon the ambit of jurisdiction of the tribunal is concerned or the intended ousting of the Supreme Court jurisdiction.  Due weight however must be given to the object of the Act stated in s. 4 -

"The object of this Act is to be achieved through -

(a)Mandatory minimum standards for retail shop leases; and

(b)A low cost dispute resolution process for retail tenancy disputes."

The definitions of "retail shop" and "retail shop lease" are very wide, and the former term covers a wide range of properties of considerable value. The jurisdiction of the tribunal however is limited to retail tenancy disputes where "the amount of value or damages in dispute" does not exceed the monetary limit of the District Court under s. 66 of the District Courts Act (Retail Shop Leases Act s. 109(1)(c)). No material has been placed before me, or so far as is known, before the tribunal, to indicate, one way or the other, whether the value of the options (totalling 6 years) that the first defendant claims to have exercised is below that limit.
In the absence of such evidence I fail to see how the Chairman of the tribunal could "hold" as he purported to do on 11 December 1996 (the day before the summary judgment application was to be heard in the Supreme Court) "that the matter in dispute is not properly before the Supreme Court in view of s. 94(1) of the Retail Shop Leases Act 1994".
I note in passing that s. 109(1)(a)(iii) of the Act on its face gives primacy to proceedings that are before a court irrespective of when they were commenced. This raises an inconsistency with s.94. It is possible to regard s.109(1)(a)(iii) as extending the exclusions stated in s. 94(2). It is equally possible to regard s. 94 as dominant and as requiring s. 109(1)(a)(iii) to be read down. If a choice is open I would prefer the construction which does not cut down the established powers of the courts.
           There are further indicators that jurisdiction in ejectment as such has not been conferred upon the tribunal.  The types of order that may be made by the tribunal are very wide (s. 83(2)) but these are different in kind to the enforcement procedures in the Supreme Court which ultimately entitle a plaintiff to a writ of possession.  Forms 233 and 234 to the Supreme Court Rules demonstrate that a writ of possession is directed to the sheriff who is to deliver possession to the plaintiff and cause the plaintiff to have possession of the land.  It may well be that a tribunal could frame an order directing a defendant to leave premises, in which case such an order might eventually be enforceable in the Supreme Court in the same way as an injunction.  It is however a little surprising to think that the enforceability of such an order would depend upon its form.  It is also curious that the mere invocation of the injunctive powers of an established court is sufficient to destroy the exclusivity of the tribunal's jurisdiction (s. 94(2)(c).  There are also difficulties such as estoppels on questions of title and other rights including priorities that have not been examined in this difficult area of dual jurisdiction.  It may sometimes be the case that entitlement to possession is a question that arises at the same time as a retail tenancy dispute, but the real question is whether such an issue is itself a retail tenancy dispute.  It seems to me that there has not been any full transfer of the Supreme Court's jurisdiction in ejectment to the tribunal.
           So far as the claim for mesne profits is concerned, the claim arises out of a relationship of owner and trespasser, not out of a relationship of landlord and tenant (compare Jam Factory Pty Ltd v. Sunny Paradise Pty Ltd above, p. 586; Klewet Pty Ltd v. Landsdown above p. 973).  In any event, that was not a matter that was referred by the tenant to the tribunal in its notice of 30 October 1996.
So far as the validity of exercise of the option is concerned, on a literal reading of the definition of "retail tenancy dispute" one might think that in a general way such an issue is a "dispute under or about a retail shop lease". However counsel for the plaintiff submits that it is a dispute about prospective extensions rather than a dispute under the original lease. There is also the difficulty of the non-availability of relief under s. 128 of the Property Law Act during tribunal proceedings, which is particularly worrying when the defendant in these proceedings has expressly asked for such a power to be exercised.
If this issue stood alone, I should be inclined to hold that it would fall within the tribunal's jurisdiction. However this question seems to me to be an issue in a wider dispute. In the proceedings before me it can be seen as an issue that will determine whether the lessor is entitled to possession rather than a separate dispute. The lessor presents a simple case of a lease for a fixed term which has expired by effluxion of time. The defendants' defence raises issues such as the need for notices under ss. 130, 131, 132, 135 of the Property Law Act.  These "defences" appear to misconceive the nature of the plaintiff's case.  The evidence shows a demand for possession, and unless the first defendant can show a valid exercise of the option, it will have become a trespasser upon receipt of such a demand.  The question of validity of the option then is a question that has to be answered in order to decide  whether the plaintiff is entitled to an order for possession.
           I would prefer to have had more extensive argument on the important jurisdictional questions raised in this case.  I express my views, somewhat tentatively as follows

1.A claim by a lessor for ejectment, and in particular a claim for recovery of possession under a lease that has expired by effluxion of time, is not of itself a "retail tenancy dispute" under the Act.

2. On the material before me it has not been shown either that the tribunal has jurisdiction over the issues that are before this court or that this court lacks jurisdiction.  Until the contrary is shown, I am prepared to act on the footing that this court has jurisdiction to proceed.

I therefore rule that the proceedings are competent.  The parties may now make further submissions on the question of summary judgment.