Ozkan v Ayab

[2007] NSWADT 3

CITATION:	Ozkan v Ayab [2007] NSWADT 3
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Saban Ozkan RESPONDENT Danielle Ayab
FILE NUMBER:	065036
HEARING DATES:	14/09/2006
SUBMISSIONS CLOSED:	14 September 2006
DATE OF DECISION:	9 January 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994 Retail Leases Amendment Act 2005
CASES CITED:	Moweno v Stratis [2002] NSWSC 1151 Randi Wixs Pty Ltd v Pokana Pty Ltd [2002] NSWADT 205 Wood & Wilson v Bergman [2003] NSWADT 82
REPRESENTATION:	APPLICANT S Maybury, Counsel RESPONDENT P Zada, Solicitor
ORDERS:	1. Declare that the lease between the parties is not a retail shop under the Retail Leases Act 1994; 2. Declare that the Tribunal does not have jurisdiction to determine the applicant’s application; 3. Applicant’s application is dismissed

Introduction

1 This is an application by Saban Ozkan (‘the applicant’), the former lessee of premises known as Lot 5, Wyee Road, Wyee in the State of New South Wales (‘the premises’). In his application the applicant seeks relief by way of damages and other orders against Danielle Ayab, the owner/lessor of the premises (‘the respondent’). The respondent has raised a preliminary issue as to the Tribunal’s jurisdiction to hear and determine the applicant’s application on the grounds that it was not a ‘retail shop’ as defined in s.3 and Schedule 1 of the Retail Leases Act 1994 (‘the Act’).

2 With the consent of the parties a preliminary hearing was held for the purposes of determining this matter on 14 September 2006. During the course of the hearing, the parties were given liberty to make further submissions however, there is no record of any further submissions having been received.

The Subject Lease

3 A copy of the lease was tendered into evidence by way of attachment to an affidavit of the applicant sworn on 29 August 2006. That lease identifies the applicant and another person by the name of Werner ‘Ranftl’ as being the lessees of the premises. The lease also, so far as is relevant, contains the following provisions:

“ USE

the premises shall be used only as service station, convenience store, takeaway

…

TERM

the term of the lease shall be 1 year only + 3 + 3 + 3 options commencing on 14.6.05 June 2005 and ending on the 13.6.06 June 2006.”

4 Prior to the hearing the respondent had filed and served an affidavit of Richard Merola, a qualified and registered business broker and real estate agent, who had visited the premises the previous weekend, 9 September 2006. Mr Merola also gave oral evidence at the hearing during which he presented the Tribunal with copies of photographs he had taken of the outside of the premises during his visit.

5 Attached to Mr Merola’s affidavit was a report that he had prepared of his inspection. In that report he said that for the previous five years he had been in the business of classifying businesses for sale on a day-to-day basis…