CITATION: Lyons Road Pty Ltd v The Owners Strata Plan 38722 [2007] NSWADT 163 DIVISION: Retail Leases Division PARTIES: APPLICANT
Lyons Road Pty Ltd
RESPONDENT
The Owners Strata Plan No. 38722FILE NUMBER: 065111 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 May 2007
DATE OF DECISION:
27 July 2007BEFORE: Higgins S - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Fair Trading Act 1987
Retail Leases Act 1994
Strata Schemes Management Act 1996
Supreme Court 1970CASES CITED: A Calkos Pty Limited v Taylor Farms (Australia) Pty Limited & Ors (Commercial Tribunal of NSW, GMM Hoeben, Deputy Chairman, 9 April 1998)
Barclays Bank v Tom [1923] 1KB 221
Pascoe v Holyoake [2006] NSWSC 64
Taylor Farms (Aust.) Pty Limited v A Calkos Pty Limited & Ors [1999] NSWSC 186
Zouk v Lyons Road Pty Ltd [2005] NSWADT 143REPRESENTATION: APPLICANT
RESPONDENT
S Philips, Barrister
J Mueller, SolicitorORDERS: 1. The tribunal has no jurisdiction to hear and determine this applicant and the application is dismissed.; 2. Any party wishing to make an application for costs to file and serve written submissions within 28 days of this decision, failing which there will be no order as to costs.; 3. Subject to submissions being filed as referred to in order 2 above, submissions in reply to be served within a further 28 days and the tribunal to determine costs on the papers.
Introduction
1 The applicant is the registered proprietor of Lots13 and 14 in Strata Plan 38722, being Shops 13 and 14 at 38-50 Lyons Road, Drummoyne (‘the Premises’). The respondent is the owner of the common property of Strata Plan 38722. The dispute that has arisen between the applicant and respondent follows from a dispute the applicant has had with its tenant of the Premises, Ms Zouk. It is conceded that the dispute between the applicant and Ms Zouk comes within the terms of the Retail Leases Act 1994 (‘the RL Act’) in that it is a ‘retail leases claim’. It is the applicant’s contention that its dispute with the respondent is one that arises directly from its dispute with Ms Zouk and therefore also comes within the terms of the RL Act. On the other hand the respondent contends that while there may be an apparent factual relationship between the applicant’s dispute with Ms Zouk and the applicant’s dispute with the respondent, the latter dispute is not one over which the tribunal has jurisdiction. That is, the dispute the subject of this application is not a ‘retail tenancy claim’ as provided for in the RL Act.
2 In light of this the parties consented to the tribunal determining the issue of jurisdiction as a preliminary matter and these are the reasons for decision in respect to that issue.
Background facts
3 The underlying facts in this matter are not contested.
4 On 20 August 2004, the applicant leased the Premises to Ms Zouk. That lease was for a period…
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- Case
- [2007] NSWADT 163
- Decision Date
CaseChat Overview and Summary
The central legal issue before the tribunal was whether it had jurisdiction to hear and determine the application brought by Lyons Road Pty Ltd. The Owners Strata Plan 38722 contested the tribunal's authority to hear the matter, asserting that the application fell outside the jurisdictional scope of the tribunal. The court was required to examine the statutory provisions and relevant case law to ascertain whether the tribunal had the requisite jurisdiction to proceed with the application.
Upon examining the relevant statutory provisions and case law, the tribunal concluded that it did not possess the jurisdiction to hear and determine the application. The tribunal found that the application fell outside its jurisdictional remit as defined by the legislation. Consequently, the application was dismissed. The tribunal also noted that any party wishing to make an application for costs should file and serve written submissions within 28 days of the decision. If no such submissions were received, there would be no order as to costs. If submissions were filed, the tribunal would then determine the matter on the papers.
Orders
Orders of the court
1. The tribunal has no jurisdiction to hear and determine this applicant and the application is dismissed.; 2. Any party wishing to make an application for costs to file and serve written submissions within 28 days of this decision, failing which there will be no order as to costs.; 3. Subject to submissions being filed as referred to in order 2 above, submissions in reply to be served within a further 28 days and the tribunal to determine costs on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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