ML Holdings Pty Limited v Osborne

[2001] WADC 201

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ML HOLDINGS PTY LIMITED -v- OSBORNE [2001] WADC 201

CORAM:   REGISTRAR KINGSLEY

HEARD:   18 JULY 2001

DELIVERED          :   21 AUGUST 2001

FILE NO/S:   CIV 3021 of 2000

BETWEEN:   ML HOLDINGS PTY LIMITED

Plaintiff

AND

DOROTHY OSBORNE
Defendant

Catchwords:

Practice - Application to dismiss proceedings pursuant to s 27 Commercial Tenancy (Retail Shops) Agreements Act 1985 - Turns on own facts

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr B W Ashdown

Defendant:     Mr P A Smith

Solicitors:

Plaintiff:     Ilberys

Defendant:     Patrick Smith

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

About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1997) 17 WAR 309

Ketch Nominees Pty Ltd v Spooner [2000] WADC 258

Pearce v Gallop Investments [1999] WADC 34

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  The issue before me is quite concise: ought the present proceedings be dismissed on the ground that the plaintiff seeks to try the same question that is already before the Commercial Tribunal.

2. The plaintiff filed its writ in this Court on 17 November 2000.  The plaintiff’s claim, as lessor, is against the defendant, as lessee, for failure to pay rent, failure to pay outgoings, and failure to make payment of other money due.  All the defaults in payment are under the Deed of Lease or Deed of Assignment and Variation of Lease.

3. In an affidavit sworn 17 July 2001 the defendant annexes a copy of the particulars of claim which were filed in the Commercial Tribunal on 31 January 1999.  In the Commercial Tribunal the defendant is the applicant and the respondent the plaintiff.

4. The particulars of claim in the Commercial Tribunal are extensive.  The complaint of the applicant (defendant) in the Commercial Tribunal centres around the failure of the landlord to maintain, manage, promote or repair the leased premises so as to attract customers and promote their return.  The applicant (defendant) details various rights or obligations owed by or imposed on the landlord for the benefit of the lessee.  At par 18 the applicant (defendant) refers to the right of the respondent (plaintiff) to charge tenants contributions to the respondent’s expenses relating to the leased premises and at par 19 states the contributions are within constraints set out in s 12 of the Commercial Tenancy (Retail Shops) Act.

5. At par 21 the applicant (defendant) sets out, extensively, breaches she alleges founds the basis of a claim in damages and the referral to the Commercial Tribunal Registrar.

6. At par 38 of the particulars of claim in the Commercial Tribunal the applicant (defendant) refers to issues raised in relation to the variable outgoings.  At par 39 a question is posed to the Commercial Tribunal Registrar in relation to the variable outgoings.  The variable outgoings have been defined in the Deed of Lease at clause 1.03.  An analysis of that definition and the issues raised in the particulars of claim in the Commercial Tribunal shows they are the same issue.

7. Paragraph 40 of the particulars of claim in the Commercial Tribunal relates to the issues of rent and the amount payable.

8. The starting point for consideration is s 27 Commercial Tenancy (Retail Shops) Agreement Act 1985. Section 27 of the Act provides that a question may be referred to the Registrar of the Commercial Tribunal but where question is one a Court has jurisdiction then proceedings may be instituted before the Court or by way of reference, but not both.

9. In About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1997) 17 WAR 309 Justice Parker commented that the question for determination before the Tribunal must be the same question for determination in the Court. It was my opinion, articulated in Ketch Nominees Pty Ltd v Spooner [2000] WADC 258, that Justice Parker was confining the operation of s 27 to the very same question sought to be argued before the Court and the Commercial Tribunal. In Pearce v Gallop Investments [1999] WADC 34 Judge Blaxell comments that in relation to s 27 (1) it is not enough the question be substantially the same:

   "To my mind it is self evident that for s 27 to apply the 'question' that can be referred to the Registrar must be the very same 'question' that a Court has jurisdiction to determine".

10. In my opinion the present proceedings involve a claim for failure to pay rental and a failure to pay outgoings.  Those questions are the very same questions before the Commercial Registrar.  The Commercial Registrar has not disavowed jurisdiction in any of the questions.  In my opinion the defendant, as applicant, having commenced proceedings in the Commercial Tribunal, it is not open for the plaintiff to commence these proceedings on the very same question.

11. The action is therefore dismissed.  The defendant is to have the costs of the action including costs reserved.