Lin v State Rail Authority of New South Wales

[2003] NSWADT 131

CITATION:	Lin -v- State Rail Authority of New South Wales [2003] NSWADT 131
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Sarah Lin RESPONDENT State Rail Authority of New South Wales
FILE NUMBER:	035037
HEARING DATES:	8 May 2003
SUBMISSIONS CLOSED:	05/08/2003
DATE OF DECISION:	05/08/2003
BEFORE:	O'Connor K - DCJ (President); Griffiths G - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT C Frawley, solicitor
ORDERS:	1. Application for urgent interim relief is dismissed.; 2. Principal application is dismissed.

DELIVERED EX TEMPORE


1 Background: The application the subject of this decision was for an urgent interim order pursuant to ss 72(1)(g) and 72AA(4) of the Retail Leases Act 1994 from the Tribunal. The underlying principal application contains both a retail tenancy claim and an unconscionable conduct claim. As it included an unconscionable conduct claim, the Tribunal was constituted so as to include an advisory member (there was only one available) as required by cl 4, Part 3B, Schedule 2 to the Administrative Decisions Tribunal Act 1997.

2 At the conclusion of the hearing, ex tempore reasons were given for refusing the application and dismissing the principal application. The Tribunal dismissed the principal application on the basis that it was without jurisdiction, following consideration of an objection by the respondent.

3 The applicant asked for a written copy of the reasons. The following text of the ex tempore reasons was supplied, with minor editorial changes.

4 PRESIDENT: The facts of the matter are these: that Ms Lin has been the occupant since 1998 until recently, the 15th of April 2003, of a kiosk leased from the State Rail Authority at Waverton station. The tenancy agreement between State Rail and Ms Lin has been produced by the solicitor for State Rail.

5 That lease has the usual format of a lease and typical terms. And then it has a schedule to it containing the particular arrangements that apply to the relationship with Ms Lin. The most material aspect of those arrangements is that it is a lease with a one month term and it is expressed to be a lease from month to month. The rent is expressed as a monthly rent of $363.64 per month.

6 The objection that is made today by the solicitor for the State Rail Authority is that the lease is not one over which the Tribunal has jurisdiction.

7 The Tribunal’s jurisdiction is governed by a number of factors. There are various restrictions on the Tribunal as to what kinds of retail shop leases it can look at. One of those restrictions is that we are not entitled to get involved in disputes where the leases are ‘for a term of less than six months without any right for the lessee to extend the lease (whether by means of an option to extend or renew the lease or otherwise), and for this purpose a provision for holding over by the lessee at the end of the term of the lease, is not considered to confer a right on the lessee to extend the lease if it operates effectively at the discretion of the lessor’: that is provided by s 6(1)(a) of the Act.

8 For your information, Ms Lin, there are other restrictions on us. For example, we can not look at a case where the lease is for more than 25 years and we can not look at a case where the shop has a lettable area of over 1,000 square metres: s 6. Now, I know neither of those things apply to your circumstances but I am just giving you a picture of the various restrictions that apply to this Tribunal.

9 We have had, as I have said, presented to us today the lease. On its face it is a lease for a monthly term as distinct from a term of six months or more. I am assured by the solicitor for State Rail, and my inspection of the terms would support that assurance, that there is nothing in the lease to suggest that Ms Lin has a right to extend the lease, although obviously she has been there for five years; and there had been no trouble until recently.

10 I will simply note for the record that Ms Lin’s grievance is that her newspaper and magazine sales have, she believes, been adversely affected by the entry into the selling of newspapers by another tenant of State Rail in the locality (and to which she has referred in the material that she handed up to me today) - the other tenant being Peter’s Four Square Supermarket, Waverton which is acting as a sub-agent to the North Sydney Newsagency. She believes that this is a breach of lease by the Supermarket, and she considers that State Rail should have taken action to prevent Peter’s Four Square Supermarket committing such a breach.

11 So I take it what Ms Lin is saying is that she had some exclusivity vis-a-vis Peter’s Four Square Supermarket. Obviously I am not in a position today to make any findings on the accuracy or otherwise of those assertions; and in any event the absence of jurisdiction would preclude that.

12 So the position as I see it is that the objection of the respondent is established and the Tribunal does not have jurisdiction - one, to entertain the stay order and, two, it must follow from that that we have not got jurisdiction in respect of the principal application that you put in Ms Lin.

13 Now, I realise you will be disappointed with the decision. But all I can suggest to you is that if at all possible, try and get some advice from somewhere that is independent. Mr Frawley has indicated that there is some understanding of your situation on the part of State Rail. Apparently they have brought your occupancy to the end at the point where you were owing several months’ rent. You say the explanation for that is to be found in what you believe to be State Rail’s inaction on the other matter.

14 But if you are going to continue to pursue this case through the legal system, I am afraid you will have to look to a court or tribunal that has jurisdiction over leases of short duration. I am not sure whether that is the Local Court, the District Court or the Supreme Court, but someone may be able to give you advice in that regard. Whichever path you go down, once lawyers are involved, as you must know, more cost is involved so you need to I guess think about the practicalities of doing that.

15 So the decision of the Tribunal today is that the application for urgent interim relief is dismissed for want of jurisdiction.

16 It follows from what I have said that I must also dismiss your principal application so that there is nothing now before the Tribunal.

17 That is my decision and I will give you back all the documents that you put in front of me and wish you well with whatever you seek to do next.