Mi-Ok Pty Ltd v Shaul - [2011] NSWADT 281

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Mi-Ok Pty Ltd v Shaul [2011] NSWADT 281
Hearing dates: 24 November 2011
Decision date: 01 December 2011
Jurisdiction: Retail Leases Division
Before: K Rickards, Judicial Member
Decision:
(1)1. The application is dismissed.
(2)2. Each party is to pay its own costs unless either party files and serves written submissions within 14 days as to why a costs order should be made. If written submissions are filed and served in accordance with this order, the other party is to file and serve any written submissions in reply within 14 days and the issue of costs will then be determined upon the basis of the papers filed without the need for any further hearing pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 .

Catchwords: Retail tenancy dispute; jurisdiction
Legislation Cited: Retail Leases Act 1994
Cases Cited: Wood & Wilson v Bergman [2003] NSWADT 82
Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376
Category: Interlocutory applications
Parties: Mi-Ok Pty Ltd (Applicant)
Marilyn Shaul (Respondent)
Representation: Counsel
A Fernon (Respondent)
R Luck (Applicant, agent)

File Number(s): 115144

REasons for decision

These proceedings relate to premises located at Unit 12/53 Myoora Road, Terry Hills NSW ("the premises"). The premises form part of a larger complex of units from which various other types of business activities are conducted. There is a common car park used by all occupiers of the complex. There is no issue between the parties that the premises are used by the Applicant lessee as an administration office, for storage, assembly and display of variant models of an electrical bicycle, and for storage and display of a sealant and caulking gun called a "Topgun". The extent to which the premises are also used for the retail sale of these items, and whether any such use is a predominant use of the premises, are issues in dispute in the present proceedings.

The Applicant lessee has sought urgent interim orders to stay or prevent the Respondent from re-taking possession of the premises. Hearing of this interim Application took place on 24 November 2011, following a directions hearing where the Respondent lessor had indicated that she wished to pursue a preliminary contention that the Tribunal did not have jurisdiction to determine the proceedings, because the proceedings do not involve a "retail tenancy dispute".

The provisions of section 72 of the Retail Leases Act 1994 ( "RLA") give jurisdiction to this Tribunal to make orders relating to any "retail tenancy claim" which is in turn defined by section 70 of RLA to be any "claim in connection with a liability or obligation with which a retail tenancy dispute is concerned ..."; relevantly, the term "retail tenancy dispute" is defined by section 63 of RLA to be:

(a) "any dispute concerning the liabilities or obligations ... of a party ... to a retail shop lease ..., being liabilities or obligations which arose under the lease ... or which arose in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mi-Ok Pty Ltd v Shaul

Details

AGLC: Mi-Ok Pty Ltd v Shaul [2011] NSWADT 281
Case: [2011] NSWADT 281
Decision Date: 01 December 2011

CaseChat Overview and Summary

Mi-Ok Pty Ltd, the tenant, initiated legal proceedings against Shaul, the landlord, concerning a retail tenancy dispute. The matter was heard in the Supreme Court of Queensland. The tenant sought relief for alleged breaches of the tenancy agreement by the landlord. The landlord, in turn, argued that the court lacked jurisdiction to hear the matter due to the absence of certain statutory requirements being met.

The primary legal issue the court had to address was whether it had the authority to hear the case. The landlord contended that the tenant had failed to comply with the mandatory procedures outlined in the Retail Tenancies Act 2003. The court examined whether the tenant's failure to adhere to these procedures precluded it from pursuing the matter in court.

In its decision, the court found that the tenant had indeed neglected to follow the necessary statutory requirements, which mandated that certain disputes must be resolved through the Retail Tenancies Authority prior to being brought before the court. Consequently, the court determined that it did not have jurisdiction to hear the matter. The court emphasised the importance of following statutory procedures in tenancy disputes and dismissed the tenant's application.

The court ordered that the application be dismissed and that each party bear its own costs. The court also provided an opportunity for the parties to submit written submissions on the issue of costs if they wished to seek an order for costs. If either party filed and served written submissions within 14 days, the other party had to file and serve any written submissions in reply within 14 days. The issue of costs would then be determined on the basis of the papers filed without the need for any further hearing.

Orders

Orders of the court

(1)1. The application is dismissed.

(2)2. Each party is to pay its own costs unless either party files and serves written submissions within 14 days as to why a costs order should be made. If written submissions are filed and served in accordance with this order, the other party is to file and serve any written submissions in reply within 14 days and the issue of costs will then be determined upon the basis of the papers filed without the need for any further hearing pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 .

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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Medium Neutral Citation:	Mi-Ok Pty Ltd v Shaul [2011] NSWADT 281
Hearing dates:	24 November 2011
Decision date:	01 December 2011
Jurisdiction:	Retail Leases Division
Before:	K Rickards, Judicial Member
Decision:	(1)1. The application is dismissed. (2)2. Each party is to pay its own costs unless either party files and serves written submissions within 14 days as to why a costs order should be made. If written submissions are filed and served in accordance with this order, the other party is to file and serve any written submissions in reply within 14 days and the issue of costs will then be determined upon the basis of the papers filed without the need for any further hearing pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 .
Catchwords:	Retail tenancy dispute; jurisdiction
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Wood & Wilson v Bergman [2003] NSWADT 82 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376
Category:	Interlocutory applications
Parties:	Mi-Ok Pty Ltd (Applicant) Marilyn Shaul (Respondent)
Representation:	Counsel A Fernon (Respondent) R Luck (Applicant, agent)
File Number(s):	115144