Lyons Road Pty Ltd v The Owners Strata Plan 38722

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. 38722
FILE NUMBER:	065111
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	8 May 2007
DATE OF DECISION:	27 July 2007
BEFORE:	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 1970
CASES 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 143
REPRESENTATION:	APPLICANT S Philips, Barrister RESPONDENT J Mueller, Solicitor
ORDERS:	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…