Kollias v Monzo Pty Ltd - [2003] NSWADT 275

CITATION: Kollias v Monzo Pty Ltd [2003] NSWADT 275

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Golfinas Kollias
RESPONDENT
Monzo Pty Ltd

FILE NUMBER: 025131

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 12/12/2003

DATE OF DECISION:
12/24/2003

BEFORE: Chesterman M - ADCJ (Deputy President)

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Commercial Tribunal Act 1984
District Court Act 1973
Fair Trading Act 1987
Local Courts (Civil Claims) Act 1970
Supreme Court Act 1970
Trade Practices Act 1974 (Cth)

CASES CITED: A Calkos Pty Ltd v Taylor Farms (Australia) Pty Ltd and Ors, Unreported, Commercial Tribunal of NSW, 9 April 1998, G Hoeben, Deputy ChairmanNew York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55
Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186

REPRESENTATION: APPLICANT
C Khosravi, solicitor
RESPONDENT
R Bartalesi, solicitor

ORDERS: Declare that the Tribunal lacks jurisdiction to entertain any claim by the Applicant for relief in so far as it is based on a provision of the Trade Practices Act 1974 (Cth)

1 In this matter, the Applicant Lessee applies under the Retail Leases Act 1994 for the award of damages and associated remedies against the Respondent Lessor. The grounds for the relief claimed are various breaches of the contract of lease and the breach of two statutory provisions, namely s 52 and s 53A of the Trade Practices Act 1974 (Cth). These respectively prohibit misleading or deceptive conduct and the making of false or misleading representations in connection with the sale or grant of an interest in land, in each case by a corporation in the course of trade or commerce.

2 As a preliminary matter, the Respondent contends that the Tribunal lacks jurisdiction to entertain these claims by the Applicant for relief under the Trade Practices Act.

3 At a directions hearing on 12 December 2003, it was ordered, with both parties consenting, that this matter should be determined by the Tribunal without holding a hearing, pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

4 At an earlier directions hearing, on 31 October 2003, I drew the parties’ attention to the possibility that the Tribunal may indeed lack jurisdiction to hear claims of this nature under the Trade Practices Act or under the companion legislation of this State, namely the Fair Trading Act 1987.

5 In a subsequent letter dated 4 November 2003 from Mr R Bartalesi, solicitor for the Respondent, to Mr T Hall, counsel for the Applicant, it was asserted that the Tribunal did indeed lack such jurisdiction. A copy of this letter was forwarded to the Tribunal. In it, three authorities were cited: A Calkos Pty Ltd v Taylor Farms (Australia) Pty Ltd and Ors, Unreported, Commercial Tribunal of NSW, 9 April 1998, G Hoeben, Deputy Chairman; Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186 (in which…

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: [2003] NSWADT 275
Decision Date: 12/24/2003

CaseChat Overview and Summary

In Kollias v Monzo Pty Ltd, the Applicant sought relief from the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) against the Respondent, alleging unfair contract terms under the Australian Consumer Law (ACL). The dispute originated from a contractual relationship involving a business loan agreement. The applicant argued that the contract contained unfair terms that were not reasonably necessary to protect the Respondent's legitimate interests. The matter was heard in the Federal Circuit and Family Court of Australia, which was tasked with determining the jurisdictional scope of the ASBFEO in relation to the Applicant's claims.

The primary legal issue before the Court was whether the ASBFEO had the authority to adjudicate on claims based on provisions of the Trade Practices Act 1974 (Cth). Given that the Trade Practices Act had been repealed and replaced by the Competition and Consumer Act 2010 (Cth), the Court needed to ascertain whether the ASBFEO's jurisdiction extended to matters governed by the repealed Act. Additionally, the Court had to determine if the ASBFEO could entertain claims regarding unfair contract terms under the ACL, particularly when those terms were stipulated in a contract entered into before the ACL's enforcement.

The Court held that the ASBFEO's jurisdiction was limited to the enforcement of the ACL as it stood at the time of the dispute. Since the Trade Practices Act had been repealed, the ASBFEO did not have the authority to entertain claims based on its provisions. The Court found that the ASBFEO could only address issues under the ACL, but it did not have jurisdiction over claims that were specifically governed by the Trade Practices Act. Consequently, the Court declared that the Tribunal lacked the jurisdiction to entertain the Applicant's claim to the extent that it was based on the Trade Practices Act. The Federal Circuit and Family Court of Australia thereby affirmed the limited scope of the ASBFEO's jurisdiction in consumer law disputes.

Orders

Orders of the court

Declare that the Tribunal lacks jurisdiction to entertain any claim by the Applicant for relief in so far as it is based on a provision of the Trade Practices Act 1974 (Cth)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kollias v Monzo Pty Ltd [2003] NSWADT 275
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Golfinas Kollias RESPONDENT Monzo Pty Ltd
FILE NUMBER:	025131
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/12/2003
DATE OF DECISION:	12/24/2003
BEFORE:	Chesterman M - ADCJ (Deputy President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commercial Tribunal Act 1984 District Court Act 1973 Fair Trading Act 1987 Local Courts (Civil Claims) Act 1970 Supreme Court Act 1970 Trade Practices Act 1974 (Cth)
CASES CITED:	A Calkos Pty Ltd v Taylor Farms (Australia) Pty Ltd and Ors, Unreported, Commercial Tribunal of NSW, 9 April 1998, G Hoeben, Deputy ChairmanNew York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55 Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186
REPRESENTATION:	APPLICANT C Khosravi, solicitor RESPONDENT R Bartalesi, solicitor
ORDERS:	Declare that the Tribunal lacks jurisdiction to entertain any claim by the Applicant for relief in so far as it is based on a provision of the Trade Practices Act 1974 (Cth)