M L Holdings Pty Ltd v Marrapodi Holdings Pty Ltd

[2001] WADC 283

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   M L HOLDINGS PTY LTD -v- MARRAPODI HOLDINGS PTY LTD & ORS [2001] WADC 283

CORAM:   REGISTRAR KINGSLEY

HEARD:   18 JULY 2001

DELIVERED          :   Delivered Extemporaneously on 18 JULY 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 2770 of 1998

BETWEEN:   M L HOLDINGS PTY LTD

Plaintiff

AND

MARRAPODI HOLDINGS PTY LTD
First Defendant

FRANCESCO MARRAPODI
Second Defendant

VIOLA SANTA MARRAPODI
Third Defendant

Catchwords:

Practice - Western Australia - Commercial Tenancy (Retail Shops) Agreements Act 1985 - Application to dismiss proceedings

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B Ashdown

First Defendant             :     Mr P Smith

Second Defendant         :     Mr P Smith

Third Defendant           :     Mr P Smith

Solicitors:

Plaintiff:     Ilberys

First Defendant             :     Patrick Smith

Second Defendant         :     Patrick Smith

Third Defendant           :     Patrick Smith

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  The defendant has brought an application seeking that the plaintiff's proceedings be dismissed on the grounds that the proceedings as set out in the statement of claim are the subject of a reference to the Commercial Registrar under the Commercial Tribunal Act 1984 and therefore by s 27(1) Commercial Tenancy (Retail Shops) Agreements Act 1985 this court has no jurisdiction to hear the matter. 

2. Section 27(1) provides that where the Commercial Tenancy (Retail Shops) Agreements Act 1985 provides for reference of a question to the Registrar, Commercial Tribunal; and the question is one that a court has jurisdiction, then proceedings may be instituted to determine the question by way of reference to the Registrar, or before the court, but not both.  In this matter a question has been referred to the Registrar of the Commercial Tribunal.

3. On the evidence before me there are no particulars of the reference under s 19 to the Registrar of the Commercial Tribunal.  Section 19 requires a party to complete the prescribed form and lodge the form, together with the prescribed fee, at the office of the Registrar.  The evidence is that the prescribed form did not particularise the issues that made up the question being referred.

4. That being the case I am unable to determine whether the question sought to be prosecuted in this jurisdiction is the same question as that raised before the Registrar of the Commercial Tribunal.  There is no evidence upon which I can determine whether the question is the same question.

5. The defendant's application pursuant to s 27 is therefore dismissed on the evidentiary ground that the defendant has failed to put in any evidence before me, that I may determine whether the question before the Registrar of the Commercial Tribunal is the same question as that being agitated in this court.  It is not a question dealing with the validity of the referral to the Registrar under s 19 of the Act.  It is merely a lack of evidence to enable a decision to be made.