Kwon v Kim

[2005] NSWADT 167

CITATION:	Kwon -v- Kim [2005] NSWADT 167
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Seok Hong Kwon RESPONDENT Jin Kong Kim
FILE NUMBER:	055044
HEARING DATES:	23/06/2005
SUBMISSIONS CLOSED:	06/23/2005
DATE OF DECISION:	07/28/2005
BEFORE:	Fox R - Judicial Member
APPLICATION:	Costs - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Goodlink Pty Limited –v- Singh, [1999] NSWADT17 Randi Wixs Pty Limited v Pokana Pty Limited [2002] NSWADT205 Freetel Communications Pty Limited v In Eop Chung [2003] NSWADT 169
REPRESENTATION:	APPLICANT S Kim, solicitor RESPONDENT K Oliver, barrister
ORDERS:	1. Application dismissed – no jurisdiction; 2. No Order for costs – no jurisdiction.

1 The Applicant seeks Orders for damages for failure to repair, but the Respondent has raised a preliminary point of jurisdiction. The parties agree that the authorised and actual use of the premises is “Internet Café” and further agree that if the use is not within Schedule 1 of the Act, this Tribunal has no jurisdiction.

2 By way of background, the definition in Section 3 is:-

"retail shop" means premises that:

(a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre).

3. If the premises are not a Retail Shop, the occupancy cannot be the subject of a Retail Shop Lease.

4. The Schedule lists 134 descriptions of shops, some of which are given in multiples, and so it is likely that more than 150 separate and distinct uses are named.

5. The difficulty in this particular matter is that, at first blush, none of the types of shops or uses identified engages the concept of an internet café.

6. The Applicant drew attention to the fact that the Schedule was “set” in 1994, a time when there were (apparently) no such facilities in Australia, and then sought to bring the use within

(a) equipment hire shops or

(b) games and hobbies shops,

or if that failed, sought to encourage me to accept the criticism by Mr Donald in Goodlink Pty Limited –v- Singh, [1999] NSWADT17 “this matter illustrates the limited and, in my view, overly precise way in which the Retail Leases Act 1994 operates so as not to be available and what I think most ordinary people would consider to be a Retail Lease environment” as an invitation to take a broad view of the Schedule.

7. Whilst an Olympian overview may be taken by the High Court when exploring the Constitution, (Jones v CLTH [1964 – 5] 112CLR 206 springs to mind) that seems to me to be entirely inappropriate for the Retail Leases Act, especially in relation to a Schedule of Uses which is very particular and precise in its descriptions. I am limited by the more mundane rules of interpretation:- If there is ambiguity the rule is ejusdem generis, and if there is a lacuna, I am powerless.

8. In these observations I take heart from Young J in the matter of Chathay Developments Pty Limited v Laser Entertainment Pty Limited 1998 when His Honour observed that a videotape library fell within the Schedule, but a shop which sold video tapes did not.

9. It is clear, as the Applicant admits, that only two (2) uses are close to the target, although it also appears to me that if games and hobby shops are to be considered, then an examination of electronic equipment and supplies shops may also be necessary.

10. This Tribunal has in the past considered the application of the Schedule in the matter of Randi Wixs (Randi Wixs Pty Limited v Pokana Pty Limited [2002] NSWADT205) and in the matter of Freetel (Freetel Communications Pty Limited v In Eop Chung [2003] NSWADT 169). Randi Wixs examined “restaurants” but is of little assistance in this particular matter. Freetel examined “electronic equipment”, and may be more relevant. I suppose that, on much the same basis as Mr Donald (Freetel) held that mobile phones are electronic equipment, I am prepared to hold that computers also fall within that description. That, however, does little to assist the Applicant, because it does not sell computers, and so does not conduct a computer shop.

11. I digress to observe that it was put to me that the use as internet café properly allowed the Applicant to sell canned drinks, and perhaps other packaged refreshments, and also sell computer parts. These uses, however, are admitted to be ancillary to the major activity which is the hire, in situ, of computers to either give access to the internet, email, or otherwise to use the available programs to process information or play games. It is now well established that the Tribunal must have reference to the use which is predominant, and the Applicant acknowledges that it is the computer access which is the predominant use.

12. The Applicant argued that the fact that the computers in the premises are often used for computer games might bring the premises within “Games Shop”.

13. The Defendant cogently countered that the description used in the Schedule limits the “game and hobby shops” use to shops of the “Hobbyco” variety. I do not need to decide this point because, even if the words can be considered disjunctively, so that the games shop, is one use and the hobby shop is the other use, I am satisfied that the ordinary meaning of the term “games shop” means a shop selling games. The term is not sufficiently wide to cover a shop of the “pinball arcade” variety, which hires out the use of games machines.

14. The Applicant’s strongest argument is that the use falls within equipment hire shop. The Respondent responded saying that the concept of hiring involves a true bailment, a taking away involving surrender of actual possession. That is actually the definition used in Butterworth’s Property Law Dictionary, although the ordinary use of the word “hire” may not be so narrow. The Macquarie Dictionary does not include “taking away” in its definition, but then uses “hire car” as the only illustration and that is certainly not in situ hiring.

15. I am satisfied that the in situ hiring of computer equipment, which might be best described as the hire of the use of the machine, rather than the hire of the machine is not within the “equipment hire” business listed in the Schedule. It seems to me that the use of this term, within the context of the Schedule, means a taking away of goods.

16. Analysis of the Schedule as a whole establishes 125 descriptions of uses which are shops which predominantly involve the passing of title in physical things whether they be by way of simple supply and purchase (Antique shops), or trade (stamps and collection shops whether for purchase or sale or both) or supply and application on the premises (beauticians) or supply and consumption on the premises (restaurant, cafeterias, coffee lounges and other eating places).

17. The only uses which do not fall within the above categorisation would appear to be:-

Barbers

Beauticians

Beauty Therapists

Boot and Shoe Repairers

Dry Cleaners

Engravers

Fast Photo Processing

Hairdressers

Optometrists

18. All of these seem to me to clearly involve an application of skilled manual or machine processes to either persons or things (which may involve the passing of title in those things). None in any way resemble the licence in situ to use equipment which is inherent in the internet café concept.

19. It very clearly follows that the only possible group of uses which might come to aid in exploring the meaning of “equipment hire shop” are:-

Bridal Wear Sales and Hire Shops

Costumes and Formal Wear Hire Shops

Television Video Equipment and Other Domestic Appliances Hire Shops

Videotape and Music Libraries

20. Again, one is struck by the precision of the description of bridal wear sales and hire shops as opposed to costumes and formal wear hire shops. That apart, all of the hire uses abovenamed, I am satisfied, involve the concept of a true bailment, a temporary surrender of possession involving a taking away as opposed to a use in situ.

21. I am satisfied that every non-hiring shop use named in the Schedule involves a simple sale or purchase of things or skills. I am also satisfied that, because four (4) of the hiring businesses described in the Schedule cannot possibly involve a use on the premises of the goods hired, that equipment hire shop is also limited to equipment which is truly bailed and taken away. A party hire establishment seems to be the appropriate illustration.

22. Although not argued in the written submissions, it does appear to me to be apposite to compare with a Laundromat. That appears to be correctly described as an establishment where there is traded a temporary right of access to a machine for it to carry out its functions. Whilst that may well be seen as a place where equipment is hired, I adhere to my view that the ordinary meaning of equipment hire shop involves a concept of taking hired items away.

23. If it be the case that my typification of an internet café as involving a hiring of equipment in situ is incorrect and that, in truth, what is sold in such a facility is the access to the electronic capacity of the equipment whether intranet or internet, then I am still not satisfied that this is the kind of transaction involving a sale of goods or skills which is inherent in all of the non-hiring shop businesses described; it falls outside the uses found in the Schedule, because no goods are sold.

24. The Application is dismissed because the Tribunal has no jurisdiction.

25. The question of costs was not argued; either party has liberty, within fourteen (14) days, to apply to the Registrar to have the matter listed for hearing in that regard.

26. However, I think it appropriate to outline my preliminary view in this regard. The Tribunal’s power to award costs is restricted (in relation to original decisions) by Section 88(3). Administrative Decisions Tribunal Act 1997. Costs may not be awarded unless the enactment under which the Tribunal has jurisdiction to make the decision, provides for the awarding of costs.

27. Although Section 77A of the Retail Leases Act makes the relevant provision to enable the awarding of costs, I am of the view that, because I have found that the Retail Leases Act does not apply to the proceedings now before me, there is no enactment which enlivens in Section 88 of the Administrative Decisions Tribunal Act, and so I have no jurisdiction to make a costs order either.

Orders

1. Application dismissed - no jurisdiction.

2. No Order for costs - no jurisdiction.