J & S McGlinn trading as Westlands v Sassine

[2008] NSWADT 54

Set aside by Appeal:

CITATION:	J & S McGlinn trading as Westlands v Sassine [2008] NSWADT 54
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT J & S McGlinn trading as Westlands RESPONDENT George Sassine
FILE NUMBER:	075166
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 December 2007
DATE OF DECISION:	19 February 2008
BEFORE:	Molloy GB - Judicial Member
CATCHWORDS:	Claim for compensation - misleading or deceptive conduct - unconscionability
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Spuds Surf Chatswood Pty Ltd v P.T. Ltd [2007] NSW ADT 130 Tringas v Quach [2007] NSW ADT 24 Tringas v Quach RLD [2007] NSW ADTAP 35 The Heart Research Institute Limited v Psiron Limited [2002] NSWSC 646
REPRESENTATION:	APPLICANT P Kristofferson, solicitor RESPONDENT P Tohme, solicitor
ORDERS:	1. Declare that the Tribunal has jurisdiction to hear and determine the Amended Application. 2.Applicant have leave to file and serve a formal Amended Application in proper form. 3.Applicant to provide, either in the formal Amended Application or alternatively by separate document, formal Particulars of the asserted unconscionable conduct and the asserted misleading and deceptive conduct. 4. Proceedings listed for further Directions before me on 13 March 2008 at 10:30am.

Background

1 By Application filed 6 September 2007 the Applicants sought certain incoherent orders. Doing the best that I could on the material, I formed the opinion that the Applicants were seeking damages for loss of stock, assets and fixtures in $200,000.00, loss of business in $300,000.00 and the return of “all files, stock, assets, fixtures, etc”. The formal Application itself was stated to be a combined retail tenancy claim and unconscionable conduct claim pursuant to Retail Leases Act Sections 71 and 71A. The grounds appeared to be that the Respondent refused access to the premises, there was no income to pay creditors, no record of creditors, that the “landlord had stolen files and computers”, that debts “can never be collected and customers cannot be contacted”, that all “income has ceased” and that bankruptcy orders were imminent. The formal Application failed to disclose the actual premises, or whether there was any lease, and was unsupported by any affidavit material.

2 By Application for Urgent Interim Order filed the same day the Applicants sought urgent interim orders in the following terms:

“All computer and paper files be returned; all stock and assets be returned; all other personal belongings be returned; bond moneys be refunded”.

The grounds were stated to be that “the business cannot trade, creditors are filing Court orders, debtors(sic) cannot be collected; the landlord has locked us out of the premises and has sold all stock and assets; no files remain to allow the business to operate in a new location (or stock/assets); bankruptcy is imminent; customers have been lost permanently”. Again, there was no specification of the actual premises nor was the application supported by any sworn material.

3 The Application for Urgent Interim Order came on for hearing before me on 14 September 2007. The Applicants were self-represented. I made the following Orders/Directions:

1. The Application for Urgent Interim Order is dismissed.

2. Costs of today reserved.

3. Applicants are granted leave to file and serve, if so advised, a further Application for Urgent Interim Order in these numbered proceedings.

4. The Tribunal strongly recommends that the Applicants obtain experienced legal advice before proceeding further.

5. Applicants to file and serve by 2 October 2007 all affidavits/ statements upon which they would seek to rely, a copy of the lease and a copy of the disclosure statement.

6. Matter adjourned for further directions 4 October 2007.

7. Applicants were granted leave to file and serve, if so advised, an amended Application for Original Decision, on or before 2 October 2007.

4 The proceedings were the subject of further directions on 15 November 2007 when they were adjourned for further directions 29 November 2007; the file was noted that the Applicants “are to file today Amended Application and their affidavits” and costs were reserved. By this stage the Applicants had sought and obtained legal representation.

5 On 29 November 2007 the Tribunal was informed that there was an issue relating to its jurisdiction and it was agreed that the question of jurisdiction would be determined in Chambers, the parties to file and serve written submissions.

6 The Applicant’s Written Submissions were filed and served 29 November 2007 and those of the Respondent 18 December 2007. The matter was subsequently listed 31 January 2008 when I noted the file “issue of jurisdiction referred to Molloy J.M. for determination on the papers” and the matter was adjourned for further Directions to a date to be fixed.

Amended Application

7 The Applicants by Amended Application filed 15 November 2007 sought damages for breaches for Section 34(a)(b) or (c), unconscionable conduct within Section 62B(d) or misleading or deceptive conduct within Section 62D of the Retail Leases Act 1994(“the Act”). The Respondent has asserted that the Tribunal does not have jurisdiction under the Act to hear the claim. The Applicants have filed two affidavits, one by the First Applicant and one by the Second Applicant, both sworn 15 November 2007.

8 For the reasons set out in Spuds Surf Chatswood Pty Ltd v. P.T. Ltd [2007] NSW ADT 130 there is no need for me to make any determination as to the veracity or otherwise of the sworn material. It is on that material however that the parties have made submissions as to whether this Tribunal has jurisdiction.

9 The documents filed by the Applicants are stated to be an Amended Application combined with an affidavit of each of the individual Applicants. It is said to be a “Combined Application – Including Unconscionable Conduct Claim and Misleading and Deceptive Conduct”.

10 The first affidavit to which I now refer is that of the Second Applicant – I choose this first simply because it annexes the relevant documentation. The premises the subject of this application are 7-9 Fox Street Granville. The original lease from the Respondent was to a Sean Saad dated 2 January 2002, registered 8844527, for a term of 3 years commencing 16 March 2002 with a 2 year option for renewal.

11 It appears from this affidavit that the First Applicant is the daughter of the Second Applicant. Together they purchased the business trading as “Westlands” (or “Westlands Produce and Building Supplies”) from Mr Saad, completed in about April 2004 (the exact date is not clear on the evidence – annexure “C1”). The purchase price was not inconsiderable – about $130,000.00 inclusive of stock. The business was “retail sales of bricks, pavers, concrete blocks, sand, cement and associated building materials such as landscaping pebbles and bark chips”. The business “also sold pet food supplies such as bird seed and dog food, but the main business was the sale of bricks and pavers and sand and cement and those types of building materials”. The evidence also shows that this business had originally been carried on other land owned by (the Respondent) or his family across the road at 8 Fox Street Holroyd. Mr Saad was the brother-in-law of the Second Applicant; the business was owned by him and his wife Mrs Betty Saad; the lease was in the name of Mr Saad (the brother-in-law) and at the time of the sale and purchase the Applicants were employees of the business. It seems that the business was purchased in the name of the First Respondent. There is some evidence that there has in fact been a formal transfer of lease registered on the title but no corroborative documentation was attached to the affidavit material.

12 The evidence discloses that the Applicants were “locked out of the premises on or about 15 May 2007 … by excluding (the Applicants) from the premises by changing the locks and denying (the Applicants) access to conduct (their) business”. The evidence shows that there were arrears in rent but it is asserted that there was some sort of agreement or representation to the effect that the Applicants would be given time to “catch up on the rent”; the Respondent “did not charge the correct rental monies due under the tenancy or account properly for the monies received, because he overcharged or over billed or overstated the position during the tenancy”; that “the landlord increased the rent, but not in accordance with the lease”; that (at least it is so arguable) the Applicants exercised the option and that was accepted by the agent for the Respondent by letter 17 January 2005; there was a subsequent argument as to whether in fact the option was exercised and the rent that was thus payable; the Applicants have asserted “there was no determination of the rent in accordance with the lease”; if “any valuation report was arranged setting the rent we never received a copy”; that the Applicants “did not “agree” to the rent increase”; and that, in summary, “there was no agreement as to the new rent because as far as (the Applicants are) aware the rent was not reviewed in accordance with the lease”.

13 The Applicants also asserts (and again there is no need for me to make any final determination) that a letter written by the Respondent’s agent 13 February 2007 stating, inter alia, that the “lease agreement will not be renewed”; asserting rental arrears of $24,557.85; requiring vacation of the premises by 15 March 2007, and so on, “is defective in law” and that the asserted arrears of $24,557.85 “included monies which … should not have been billed”.

14 By letter 24 May 2007 the solicitors for the Respondent asserted that the Applicants had “vacated the premises without any notice whatsoever … (and that the Respondent) has now secured the premises and has re-entered”. There is clearly a serious dispute as to whether there was some sort of lockout or voluntary vacation. The Applicants asserts they were locked out and that they suffered considerable damage in “over $130,000.00 of plant, equipment, trading stock”. The Applicants denies that they vacated but rather “we were locked out”. The assertion is that “the landlord locked us out of the premises permanently and refused us access even to pick up personal items”. The Applicants claim substantial damages including business losses and the opportunity to sell the business.

15 There is no need for me to refer to further details asserted to in the affidavit of the Second Applicant. The affidavit of the First Applicant, although much shorter, is to similar effect. No sworn material was put before the Tribunal by the Respondent such that I am asked to determine the issue of jurisdiction on the thus far unchallenged evidence of the Applicants.

Respondent’s Submissions on Jurisdiction

16 The Respondent firstly objects, with some force, to the failure of the Applicants to file an Amended Application, “in the approved form”. I accept that objection but in my opinion that can be appropriately cured without prejudice. The real objection is that the documentation “fails to disclose a proper matter within the jurisdiction of the Tribunal”.

17 The first primary submission is that “the Applicants are not “parties” to a “retail shop lease” and so have not lodged a “retail tenancy claim” which the Tribunal can determine”. It is submitted that there is no retail lease under the Act because, as I understand the submissions, the actual lease itself was the lease between Mr Saad and the Respondent in July 2002 and assigned to the Applicants in April 2004 and under clause 6.1 Mr Saad as lessee covenanted “not” to use the premises for a purpose other than “Warehouse, Storage, wholesale and distribution of rural products and landscape supplies” and it was submitted that “warehousing is not a retail use”. Accordingly, the Applicants were “never a party to an agreement under which they were granted a right to use the property as a “retail shop”. Because of the use of the word “not” in clause 6.1 it was submitted that the Applicants covenanted not to use the premises for the purposes of retail sales but rather only for the purposes of “Warehouse, Storage, wholesale and distribution of rural products and landscape supplies” and therefore the specified and restricted use “cannot be considered as falling within the definition in the (Act)” and the Applicants “cannot rely on the Act to circumvent their own contractual promises”. The Respondent categorised the lease as an “industrial lease agreement” rather than a retail lease and, as such, Section 7 of the Act cannot have the effect of “overriding the provisions of the “industrial lease agreement”.

18 The next submission was that rectification (as requested by the Applicants) is without the power of the Tribunal. Nextly, the Tribunal looks to the “predominant” character of the activities but only as a secondary step to the question of whether there is an agreement effected by the Act at all. In other words “once there is an agreement “to grant to another person for value a right of occupation of premises for the purposes of the use of premises as a retail shop” the Tribunal will then (and only then) look at the predominant character of the activity carried out to inquire whether it is within the listed uses within the Schedule to the (Act)”.

Submissions of the Applicants

19 Reliance was firstly placed upon Section 7 of the Act which is in the following terms:

“7. This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease”.

20 The Applicants, seeks to use Section 7 to override the argument that the use to which the premises could be put under the lease contract was not, or might not be, a permitted use under the Schedule. The Applicants submitted that they would “have had grounds to have the lease rectified” on the basis that there was “unambiguous evidence that (the) instrument (the lease contract) does not, or probably does not, express the parties’ true intention …”. Reference was made to a number of decisions relating to mistake and the proposition was advanced that the parties had a common intention as to the substance of their agreement, the Respondent either knew directly or through his agent of the actual business conducted from the premises and therefore “it would be unconscionable to allow the Respondent to escape the jurisdiction of the Tribunal based on any allegation of inconsistency between the stated use in the lease and the reality of the situation at the time of assignment of lease.” In any event, it was submitted, “emphatically that whether or not particular premises are retail premises is a question of substance”. Section 7, it was submitted, could be used if the Tribunal found “that there was any grant by the landlord that is inconsistent with the retail use of the Applicants, then such grant is superseded or overridden by the Act and in particular Section 7 thereof, because of the retail uses carried on by the Saads and then, after the assignment, the (Applicants)”. It was submitted that the essential question “in a jurisdictional dispute should always depend upon whether or not the nature of the business of the lessee or the assignees carried on predominately (or) wholly one or more of the businesses referred to in Schedule 1 of (the) Act …”.

21 Although not stated to be a form of estoppel it was submitted “that the Respondent did not allege any breach of the use in the lease prior to the termination of the lease by his conduct by locking the Applicants out … (that the Respondent and his agents) inspected the premises on a number of occasions (or) from time to time” and perhaps acquiesced in the use and certainly “did not suffer any loss detriment or damage as a consequence of the use” such that it “would be harsh, unjust or unreasonable for a lessor to cite the use in the lease as a bases of urging the Tribunal that it does not have jurisdiction when the lessor did not complain of the use at any time either before or after the assignment of the lease or before termination of the lease”.

Reasoning of the Tribunal on Jurisdiction

22 I repeat, if I may, that it is not necessary for me to form any particular view, and certainly not any final view (even if I had the jurisdiction so to do), on the material currently before the Tribunal. The material is unchallenged, not the subject of any cross-examination and no contrary material has been filed. Understandably so, for the same reasons that I advanced in Spuds Surf. The business operated from the premises was, on the evidence thus far, “retail sales of bricks, pavers, concrete blocks, sand, cement and associated building materials such as landscaping pebbles and bark chips”. This business, as so described, was “at all material times operated on land owned by (the Respondent) … (and) had originally been carried on other land owned by (the Respondent) or his family across the road at a 8 Fox Street Holroyd”. The evidence discloses that “the business had many regular customers and occasional or single-purchase occasion(al) customers … and (the) business also sold pet food supplies such as birdseed and dog food, but the main business was the sale of bricks and pavers and sand and cement and those types of building materials”. Importantly, the evidence shows that “the same business … was originally operated by the Saads before (the Applicants) brought the business …” and that the Respondent and the Respondent’s agent knew from their own knowledge the nature of the business, the nature of the business at the date of assignment and thereafter. Further, and equally as importantly, the evidence shows that the “business predominately operated selling the … building supplies to the public at …” the premises. The plain fact is that this evidence is, on this jurisdictional point, unchallenged. The evidence goes further to the effect that the Applicants were, prior to the assignment, employees in the business, had “worked in the business (and) knew what the business did even before buying the business and as far as running the business was concerned”.

23 In my opinion, on the facts before the Tribunal, there is no need to embark upon an analysis of Section 7, the law relating to rectification, mistake or estoppel.

24 Schedule 1 of the Act, coupled with Section 3, makes it plain that a retail shop is caught by the Act if it comprises (relevantly) “premises that are used, or proposed to be used, wholly of predominantly for the carrying on of one or more of the businesses prescribed” … in Schedule 1. One of those businesses is “building supplies shops”. Another is “pet shops, pet grooming and supplies shops and aquariums shops”. No argument has been advanced that the premises the subject of the lease and its subsequent assignment were not in fact “premises” or a “retail shop” (in the common use of those words) but rather, as I understood the argument, they were not caught by the Act because warehousing is not a retail use and the whole of the purpose specified in the lease, namely “Warehouse, Storage, wholesale and distribution of rural products and landscapes supplies” is also not caught by the Schedule.

25 It seems to me that the evidence thus far before the Tribunal is overwhelming, that is, that the business conducted from the premises is a retail business selling to the public “bricks, pavers, concrete blocks, sand, cement and associated building materials such as landscaping pebble and bark chips” as the predominant use at all material times. “All material times” includes the whole of the period from the commencement of the lease to, including and after the assignment to the Applicants. In my opinion no other conclusion is reasonably available from the evidence. It is further plain from the evidence that the Respondent knew from his own knowledge and/or from his knowledge through his agent of that business.

26 The issues raised in this matter thus far were dealt with by me in some considerable detail in Tringas v Quach [2007] NSW ADT 24. In that case there was an argument to the effect that, inter alia, the specified use in the lease contract, namely “Bait and tackle shop”, was not caught by the Schedule because there was no reference in the Schedule to such a use. From paragraph [39] I analysed the reasoning that, in my view, should apply to the sort of situation where one is met with a permitted use under the lease that does not fit into one of the defined permitted uses under the Schedule, alternatively does not fit comfortably into one of those permitted uses. The principles that in my opinion apply I set out at [46] – [57] and then again at [59]. For the sake of convenience I set out that reasoning hereunder with reference to those specific numbered paragraphs:

“46. “It has been said, perhaps in reliance upon the statement by Young CJ in Eq in Moweno (quoted above at [30] that in order to determine the use of the premises “if the lease actually states the use that is conclusive.” Furthermore in Moweno (2003) NSW ConvR 56-050, Barrett J was of the opinion that the question of whether a retail shop exists in a particular case is not to be approached by proceeding directly to an examination of the actual use and regarding that as the primary matter to be investigated. In his Honour’s view, where there is a written lease the question of whether a retail shop lease exists at a particular time will depend on the scope and content of the parties’ agreement as it exists at that time.

47. The difficulty with that approach, although endorsed by the Court of Appeal, is simply this: if the premises are described in the lease as business A (being a business not included in Schedule 1) and at all times the business conducted from the premises is business B (being a business within one or more of the descriptions in Schedule 1) how could it be asserted that the premises from which the business is conducted is not actually used wholly or predominantly for business B? Surely the words “are used” mean what they say, that is actual use. It may be different if business A was conducted from the premises at the date of commencement of the lease – in that case a subsequent unilateral change of use would not effect the contractual rights of the parties as to whether the premises are governed by the Act, which are fixed at the commencement date of the lease and simply cannot be varied, absent consent, because there is a change of business use during the term of the lease. Thalassa dealt with whether premises were a “retail shopping centre” and I held that if a building was a retail shopping centre at the commencement of a lease of premises within that building and at some subsequent time during the term of the lease less than five of the premises were used for Schedule 1 businesses, the contractual rights of the property were fixed the commencement date of the lease and could not be varied simply because there was a change of business use of other premises within the building. Similarly, where a building subsequently becomes a retail shopping centre does not affect the contractual rights of those lessees who occupied premises within that centre prior to it becoming a retail shopping centre. One needs therefore to look at, not only the description of the permitted use in the lease (if there is such a description) but also look at the actual consented use to which the premises were put at the commencement of the lease – that use determines the contractual rights of the parties, absent consent variation, as to nature of the business and whether the business falls within the Schedule 1. If the actual consented use is that of a Schedule 1 business then the premises are caught but so it seems to me, if the actual consented use is not within one of those Schedule 1 categories then the premises are not caught by the Act unless the contracted permitted use is that of a Schedule 1 business.

48. This view is supported, in my very respectful opinion, by the definition of “retail shop” as set out above. One needs to look at the whole or predominant use of the premises within the way in which that has been looked at in the past in, for example, Wood & Wilson v Bergman, Thalassa and Randi Wixs Pty Limited v Pokana Pty Limited [2002] NSWADT 205.

49. In my opinion the key to understanding whether or not premises are caught by the Act is a careful analysis of the definition of “retail shop”. The words that are important are “are used”, “or” and “proposed to be used”. “Are” and “used” import present tense, “or” indicates that either can be used, and “proposed to be used” imports the intention of the parties as revealed in the lease. So, in the example in (37) above, if the premises are described in the lease as business A (being a business not included in Schedule 1) then it does not necessarily follow that the premises are not caught by the Act if in fact the premises are “used” for business B (being a business within one or more of the descriptions in Schedule 1). Indeed, the present case is somewhat classic: “bait and tackle” is not a specified business under Schedule 1 such that one needs to look past the description of the business use in the lease to analyse exactly the whole or predominant use of the premises.

50. Using the same principle and now looking at the words “bait and tackle”, the permitted use under the lease, one then looks at the words “bait” and “tackle” and then determines, from the evidence, what is the predominant use at the commencement of the lease or at the relevant time for determination of this issue – in this case the exercise of the first option. The evidence in this case is overwhelming: fishing tackle and accessories occupy 78 percent of the business turnover. It must follow that the fishing tackle and accessories portion of the business conducted from these premises is the predominant use (on the facts as put before the Tribunal in this case).

51.The next question is this: does “fishing tackle and accessories” fall within the description of “sporting goods” within Schedule 1. In my opinion it does. It is not so “totally different” or significantly different from “sporting goods” that one could comfortably form the opinion that such a business was within the contemplation of the Parliament as a business not to be included in Schedule 1. In my view, “fishing tackle and accessories” clearly falls within the concept of “sporting goods” such that where one finds at the relevant time a business of fishing tackle and accessories, as its whole or predominant use then such a shop is a “sporting goods shop” within the meaning of that phrase in the Schedule 1.

52. The difficulty (so it seems to me) of identifying the use to which the premises are put by reference only to the permitted use as stated in the lease is that it avoids an analysis of the provisions of the Section 3 definition of “retail shop”. The first word that requires attention is “are” – it seems to me that word imports a present use of the premises. Traditionally, the evidence before this Tribunal has been directed towards the use of the premises at the time of the filing of the Application or the relevant time in issue (in this case the exercise of the first option). So, in this case, the evidence (unchallenged) relates to the turnover of the business at “fishing tackle and accessories” 78 percent, “frozen and dry bait” 20 percent and “soft drinks” at 2 percent. How one could possibly work out those percentages at the commencement of the term of a lease is not immediately apparent to me. To simply say as a permitted use “bait and tackle shop” does not tell one whether the premises are used as a bait and tackle shop.

53. Secondly, the use of the words “bait and tackle shop” does not tell one whether the premises “are” … “used” … “wholly or predominantly” for a use within the business uses prescribed in Schedule 1. If that was all that was required then it would be difficult, if not impossible, to draw any conclusion regarding predominant use. Consequently, in my view one needs to go behind the permitted use description to analyse what is the business being conducted from the premises and then determine whether the business is being used wholly or predominantly for a business use within those prescribed in Schedule 1.

54. There are therefore two problems: firstly, at what point of time does one look at the premises to determine whether the business conducted there from is wholly or predominantly within one of the one or more of the prescribed businesses; secondly, one then needs to determine what types or categories of business are being carried out and the percentage/proportional use of those businesses to determine whether the premises are being used wholly or predominantly for the carrying on of one or more of the businesses prescribed in Schedule 1. If the business use described in the lease is a use caught by Schedule 1 then the premises are caught by the Act. If the business use as so described is not a defined business under Schedule 1, then one needs to look at the actual use. In this case, it may be quite strongly argued that a bait shop simpliciter is not a sporting goods shop. On the other hand, if it is a “bait and tackle” shop as its proposed use, clearly “bait” would not fall within “sporting goods” and therefore one needs to fall back to “tackle” to determine the business. Clearly the tackle business is not the whole of the business so therefore one needs to examine the actual businesses carried out from the shop to determine the predominant use. Clearly that cannot take place at the date of signing the lease or the date of commencement, simply because there are no available figures from which to draw any useful conclusion, the business only having just commenced.

55. It seems to me distinctly arguable that where in the lease contract the permitted use is clearly one or more of the prescribed businesses then the retail shop would fall within the purview of the Act because of the words “proposed to be used” in the definition. But where it is not clear from the contractual permitted use then one needs to look at the actual use at the relevant time in issue. That would then satisfy that portion of the definition that reads, “are used”, and from the evidence one could hopefully determine the whole or predominant business (es) being carried out.

56. I am therefore of the opinion that on the facts in the case, this “bait and tackle shop” falls within the description of a “sporting goods” business within Schedule 1 and therefore this Tribunal has jurisdiction with respect to the leased premises.

57. All of this raises an interesting question: if the contractual permitted use is not a business that falls within Schedule 1 but during the course of term of the lease the business changes by agreement or novation to a business that is wholly or predominantly a business within Schedule, how does all this relate to section 16? There is no need for me to express any final view on this save if the nature of the business changes by consent from a business not within Schedule 1 to a business that falls within Schedule 1 then it may well be that the minimum five year term starts from the date of the agreed change or novation. The determination of this question can wait another day.

Schedule 1 Analysis

59. In my opinion the principles/steps that one should adopt when deciding whether a business falls within one or more of the described businesses in Schedule 1 are consistent with the recent Judgment of Judicial Member Higgins in Lauven Pty Ltd v Venus Adult Shops Pty Limited [2006] NSW ADT359. In that Judgment, the learned Judicial Member distinctly set out principles that should apply. I adopt entirely her reasoning. It seems to me that when one is looking at whether the business carried on from premises falls within one or more of the businesses prescribed in Schedule 1 then the Tribunal needs to carry out the following steps:

"1. Firstly, look at the contract, the lease, to see what is the permitted/agreed use.

2. If that use fits within one or more of the businesses described in Schedule 1, then the premises are a “retail shop” within the meaning of the Act (provided the other indicia apply).

3. Thirdly if the permitted/agreed use is not clear, or is uncertain, or is capable of a number of interpretations, or the use covers a number of different types of businesses some of which are, or may be, within the Schedule 1 described businesses, then an analysis is required of the use(s) to determine the actual use(s), to determine the predominant use(s) and if the predominant use(s) falls within one or more of the described businesses then the premises are a “retail shop”.

4. Fourthly, if the contracted use, not being a prescribed business, was somehow changed/varied by agreement, express or implied, then an analysis is required of the actual use(s). In the case of a change that would cause the actual use to fall within one or more of the prescribed businesses, then (but not deciding) it is arguable that the premises become “a retail shop” from the time of such change – this may well activate Section 16 such as to create a minimum five year term from the date of such change.”

27 My decision in that matter was the subject of appeal, but not on that point. The appeal dealt with another issue relating to the appointment of specialist retail valuers and the appeal was dismissed – see Tringas v Quach (RLD) [2007] NSW ADTAP 35.

28 Applying the above principles one firstly needs to look at the lease contract to see what is the permitted/agreed use. That use, on the evidence was limited to “Warehouse, Storage, wholesale and distribution of rural products and landscape supplies”. Like a bait and tackle shop the use of those words does not necessarily instantly equate with words used in Schedule 1 of the Act. Consequently, the permitted/agreed use is not clear, or is uncertain or is capable of a number of interpretations, or the use covers a number of different types of businesses. In any of these circumstances an analysis is required of the use(s) to determine the actual use(s) to determine the predominant use(s) and then, if the predominant use(s) falls within one or more of the described businesses in Schedule 1 then the premises are a “retail shop”. In my opinion, for the reasons I have stated above, the evidence is overwhelming to the effect that at all material times the premises comprised a “building supplies shop” within Section 3.

29 If I am wrong in my clear conclusion that the use of the premises was caught by Schedule 1 at the commencement of the lease and prior to the assignment, I am clearly of the view that from the date of assignment to the date of vacation of the premises the business, on the evidence thus far, was a business caught by Schedule 1 and, as importantly, was a business as described in the evidence to the knowledge of the Respondent and/or his agent such that there has been a change or variation, express or implied, or the Respondent is estopped from asserting that the nature of the business is not as described in the affidavit material at those times.

30 I am therefore of the very clear opinion that on the evidence before me thus far the premises the subject of the assignment are premises which constitute a “retail shop” within the meaning of the Act, that the Applicants are parties to a retail shop lease and that they have lodged, albeit not in the correct form, a retail tenancy claim within the jurisdiction of this Tribunal (Section 70). That is not to say that all the claims of the Applicants are within jurisdiction – but a determination of that issue can await the hearing before the Panel.

Consequent Directions

31 The Applicants should have leave to formally amend their application in the proper form. I propose to re-list this matter for the purposes of providing guidance, and any other appropriate directions, so that the proceedings can be properly on foot. Although it is true that proceedings in this Tribunal are not the subject of formal pleadings it is appropriate to “get it right” to avoid the parties themselves becoming confused as to what are the true issues and the Tribunal itself falling into similar error.

32 Similarly, I would propose to give formal directions to the provision of formal particulars. In my opinion there is now a practice in this Division that where a party asserts unconscionable conduct and/or misleading or deceptive conduct, then a direction should be made that the parties so asserting particularise their claim(s) (see my ex tempore decision in C J Santana Pty Ltd v. Lend Lease Retail, File 085011, 31 January 2008). The categories of unconscionable conduct and/or misleading and deceptive conduct are not closed. Particulars are now ordered for three primary reasons:

a) It concentrates the mind of the asserting party on what exactly is the asserted unconscionable conduct and/or misleading and deceptive conduct.

b) It tells the other party the precise case that it is called upon to meet, the assertions and the evidence relied upon to support those assertions.

c) It also tells the Tribunal, when hearing and deciding the matter, what are those particulars so that the Tribunal determines the thus defined issues on the particularised material put before it so that it, the Tribunal, does not fall into error in deciding a matter that is not before it or becoming confused as to the issues because of lack of particularity. It is quite clear that a decision will be overturned if it deals with matters that are not before the Court or Tribunal similar to the analogous situation where an expert provides a determination that it “outside the terms of the agreement” – see The Heart Research Institute Limited v Psiron Limited [2002] NSWSC 646 at [32]-[33].

33 The Applicants have applied for costs, limited to the argument on the jurisdictional issue. In my opinion costs on this issue should be reserved, with leave granted to the Applicants to agitate this issue before the Panel upon the hearing of the Amended Application.

Orders
1. Declare that the Tribunal has jurisdiction to hear and determine the Amended Application.

2. Applicants have leave to file and serve a formal Amended Application in proper form.

3. Applicants to provide, either in the formal Amended Application or alternatively by separate document, formal Particulars of the asserted unconscionable conduct and the asserted misleading and deceptive conduct.

4. Proceedings listed for further Directions before me on 13 March 2008 at 10:30am.