Ktenas v Scott (RLD)

[2002] NSWADTAP 15

Appeal Panel

CITATION:	Ktenas -v- Scott (RLD) [2002] NSWADTAP 15
PARTIES:	APPELLANT George Ktenas T/A Shop-Store 7 & Office 8 RESPONDENT Leslie Gordon Scott
FILE NUMBER:	019047
HEARING DATES:	11/12/2001
SUBMISSIONS CLOSED:	12/11/2001
DATE OF DECISION:	12/11/2001
DECISION UNDER APPEAL:	George Ktenas -v- Leslie Gordon Scott
BEFORE:	O'Connor K - DCJ (President); Hole M - Judicial Member; O'Neill A - Member
CATCHWORDS:	adequacy of reasons - costs
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	015058
DATE OF DECISION UNDER APPEAL:	09/14/2001
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Citadin Pty Ltd (No. 2) -v- Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31
REPRESENTATION:	APPELLANT In person RESPONDENT P Lowe, solicitor
ORDERS:	1. The appeal is dismissed; 2. The appellant pay the costs of the appeal.

Delivered ex tempore

1 At the conclusion of the appeal hearing the following short oral reasons were given, dismissing the appeal.

‘HIS HONOUR: We have considered the submissions that you have made in relation to your appeal, Mr Ktenas, and the submissions made by Mr Lowe in reply and our decision is that the appeal is dismissed and I will now go on and give some short reasons and I propose to issue some more detailed reasons in writing later. We are satisfied that the Tribunal, that is Mr Fox, found that as at 14 September you, Mr Ktenas, were again in arrears in relation to payment of your rent and that the lessor, that is, Mr Scott, was entitled to rely on the earlier notice of termination to recover possession of the premises. In that regard I refer you, Mr Ktenas, to the orders that were made on 30 May 2001 which are referred to in the text of the decision with file number 015058 in which you were the applicant.

The order that Mr Fox made on that occasion was that the respondent landlord, that is Mr Scott, was to return possession of the premises to you upon payment of rent in clear funds of $836, including GST, and all further action by Mr Scott was stayed whilst monthly payments of $836 are made on the first day of each and every month. That order was to lapse without further order of this Tribunal if payments were not made on the due date. So the effect of that order was, as we interpret it, was to stay the operation of the notice of termination and the application which Mr Scott made founded on that notice of termination.

Given that, the Tribunal then found that you were again in arrears, that is, you were not up to date in the payment of your rent on 14 September. It concluded that Mr Scott was justified in having the premises returned to him. In our view, this case is a simple case about the non-payment of rent. The reasons that you gave to us today, Mr Ktenas, and no doubt you gave to Mr Fox, for your inability to pay the rent were not relevant in law.

We acknowledge that this has been a stressful case for both parties, that it obviously is desirable wherever possible that leases be allowed to continue and as we interpret the material in the case, Mr Fox made orders early on which sought to maintain the relationship between the parties. That matter is alluded to in the other decision, 015077, made on 14 September, and we accept, Mr Ktenas what you say that the amount of $1946.83 that is referred to as being payable in respect to the period 1 February 2001 to 11 March 2001 should in fact read, "to 11 April 2001."

There is an error there, as we read it. We accept that the relevant number of days that was sought to be dealt with in this way was 70 days not the six weeks that is expressed to be dealt with in the decision. So as we understand the matter there was a period of non-payment of rent covering 1 February to 11 April. That matter is the subject of a separate order in matter 015077. That period of non-payment was put to one side when the order of 30 May was put in place. But it was never absolved or permitted that that non-payment continue in the event that you failed to stay up to date in your rent later on.

Now, we accept that the Member's reasons did not provide an explanation for the conclusions reflected in points 1 to 8 of his decision in file number 015058, which appear at the foot of the one page reasons for decision. But it is our view that whatever view he might have held on those matters that would not have made any difference to the fundamental point that this was a case about non-payment of rent and the lessor was entitled to possession. What we will do in our fuller reasons for decision is that we will give a short explanation as to why we believe those conclusions of the Member were reasonable conclusions.

I will make a short point now that the orders that the Tribunal is entitled to make are set out in the Retail Leases Act at section 72 of the Act, and just to give you a short outline of what we will say in more detail in our fuller reasons, many of the orders that you sought were orders that are not listed as orders we can make under section 72 of the Act; there are a couple that are not in that category and we will deal with that in our reasons for decision.

Now, that leaves the matter of costs. I took it from the submissions that neither of the parties were aware directly that we have in fact made observations at the appeal panel level in retail leases disputes in recent times on the question of costs in appeals, in a case called Citadin Pty Ltd (No. 2) -v- Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31. We have indicated in that decision that the appeal panel is of the view that where unmeritorious appeals are lodged in retail leases cases they should be met with a costs order of the usual kind.

So in this case an order will be made that the appellant meet the costs, pay the costs of the respondent in respect of the appeal but not in respect of the original proceedings.

Now, one final matter, Mr Ktenas, that we felt we should deal with is your concern about the text of point 1 of the decision that is recorded in file 015058, and that is the reference to ‘no evidence’ in the affidavit to justify the order that you sought. In our view, all the Tribunal was seeking to say in that short set of words was there was, in its opinion, no evidence that was relevant in law, there was no evidence in the opinion of the Tribunal that was relevant in law to justify depriving the landlord, Mr Scott, of the usual right of return of the premises where rent is not paid.

So they are our short reasons for decisions. The orders are that the appeal is dismissed and that the appellant pay the costs of the appeal, and in light of our view that no errors of law are identified, leave to extend the appeal to the merits is denied because no errors of law have been identified. Our short reasons are concluded and fuller written reasons will be issued as soon as possible. The proceedings are concluded.’

2 The written reasons given by the Retail Leases Division in this matter were very brief. The following resume of the appellants arguments and the Tribunal’s response is contained in the decision:
‘1. “Return business to me” - denied, no evidence in the Affidavit to justify.
2. “Return of goods” - Applicant has liberty to access premises today between 4:00pm and 5:00pm in presence of Justine Maher - managing agent.
3. I do not have any jurisdiction to make this order.
4. Noted, no order appropriate.
5. I do not have any jurisdiction to make this order.
6. Noted, no order appropriate.
7. I am satisfied that the Applicant did not pay the relevant rent, was in arrears, and has submitted no evidence to establish that the rent has been paid, or any credible suggestion that it was not due.
8. I do not have any jurisdiction to make this order.’
3 In the Notice of Appeal, the appellant contended that the reasons of the Tribunal were ‘not acceptable’, and ‘totally wrong’, and gave 7 reasons. Each reason disputed findings or sought additional findings. No error in understanding of the relevant law was alleged. He sought the following orders:
‘1. Denial to return to my fully licenced and registered business being: Shop-Store 7 and Office 8.
2. The reason given for the dismissal is not acceptable and it is tottaly (sic) wrong the following reason:
1. Registration sertificate (sic) supplied with my affidavitt. (sic)
2. Australian Business Number supplied (ABN suplied. (sic)
So please consider carfully (sic) my appeal to you as my papers submited (sic) to you may have been misplaced.
3. Re submit to your appeals tribunan (sic) again my original business registration sertificates (sic) to enable you to return me, George Ktenas, owner and manager of Shop-Store 7 and Office 8 to my business.

4. An order is sought to returne (sic) me to my business being legal name Shop-Store 7 and Office 8.’

4 Mr Ktenas represented himself in the appeal. The notice of appeal seeks to reopen the findings of fact that led to the decision below. The reasons for decision published by the Member are unduly brief. Nonetheless as we explained in our oral reasons, this case in the ultimate turned solely on the question of whether Mr Ktenas was paying his rent, as had previously been ordered. The Tribunal found that the rent had not been paid, and that was not denied by Mr Ktenas.

5 We will now provide an explanation of the way in which the Tribunal dealt with the 8 orders sought by Mr Ktenas in the original proceedings.

6 We have dealt with proposed order 1 (return of business) in our ex tempore reasons set out above. Clearly the lessor is entitled to resume the premises in circumstances where there has been repeated failure to pay rent.

7 There are two aspects to proposed order 2. The first concerns whether Mr Scott should pay Mr Ktenas $8300. It is unclear whether this is sought for termination of the lease generally or as compensation for damage to stock arising as a result of the termination of the lease. The second aspect is that Mr Ktenas is also seeking access to the store to remove his stock from the cool room. As we interpret the transcript and the response of the Tribunal, it sought to deal with this issue by its order that ‘Applicant has liberty to access premises today [14 September 2001] between 4:00pm and 5:00pm in the presence of Justine Maher - managing agent.’

8 On appeal Mr Ktenas did not indicate any difficulty with such an order. It is not clear what steps, if any, were taken by him at the time to re-enter the premises under that order so as to remove any material of value.

9 Proposed order 3 sought to stop certain rumours about Mr Ktenas’ inappropriate use of the premises.

10 The orders that a Tribunal can make in respect of a retail lease claim are found in section 72 of the Retail Leases Act 1994, as follows:

‘ 74 (1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:
(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,
(b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings,
(c) an order that a party to the proceedings:
(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or
(ii) surrender possession of specified premises to another person, or
(iii) assign his or her or its rights under a lease to a specified person, or
(iv) do or perform, or refrain from doing or performing, any specified act, matter or thing,
(d) an order granting a party to the proceedings relief against forfeiture,
(e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease,
(f) an order:
(i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or
(ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or
(iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not,
(g) such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)--(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties.
( 2 ) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.’
11 It will be seen that s 72 contains a very specific list of the kind of orders that the Tribunal can make. We are satisfied that the Tribunal was correct in stating that it did not have jurisdiction to make the kind of order sought, and we doubt that it had any jurisdiction even to engage on the fact-finding inquiry that would be necessitated in order to ascertain whether ‘rumours’ about Mr Ktenas were in circulation, and Mr Scott was in some way responsible for them.

12 Proposed orders 5 and 6 were to similar effect to proposed order 3. Proposed order 5 was for Mr Scott to cease making alleged misrepresentations that defamed the honour and integrity of Mr Ktenas. The basis for this order were said to be the false affidavits of Mr Scott. Proposed order 6 was to order Mr Scott to cease fictitious representations that Mr Ktenas was selling second hand goods and commercially valueless goods. Mr Ktenas’ submission was that these were brand new goods and that to trade in second hand goods a licence is required.

13 For the same reasons as given in relation to proposed order 3 the Tribunal was correct in rejecting the proposed orders 5 and 6.

14 Proposed order 4 was for the Tribunal to order Mr Scott to spell Mr Ktenas’ name correctly. This is a minor matter, and is not the proper subject of a retail tenancy claim. (In any case we note that the name was spelt incorrectly on only one occasion, on the application form in matter 015077.)

15 Proposed orders 7 and 8 related to matter number 015077, filed 17 July 2001, which was an application by Mr Scott for urgent interim orders. Mr Scott sought five orders against Mr Ktenas. The hearing in respect of this matter was also heard on 13 September 2001 and the Tribunal gave its decision on that application and on this application (in effect Mr Ktenas’ cross application) in the one proceedings on 14 September 2001.

16 In matter no 015077 the Tribunal gave the following orders:

‘Respondent to pay Applicant, as rent for shop 7, 48-50 George Street, Parramatta the sum of $1,946.83
Applicant has liberty to remove Respondent’s goods from the premises.
There are no special circumstances, no order for costs.’
17 Proposed orders 7 and 8 challenged these decisions. For example, Mr Ktenas submitted in support of his proposed order 7 that he would ‘convince your Tribunal as to not oust an honest businessman out of his business like that unfairly’. The Tribunal’s reasons on this point, rejecting Mr Ktenas’ version of events, are clear.

ORDERS
1. The appeal is dismissed.

2. The appellant pay the costs of the appeal.