Prasad v Fairfield City Council

[2000] NSWADT 164

CITATION:	Prasad & Anor -v- Fairfield City Council [2000] NSWADT 164
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Daniel Prasad Stephen Walker RESPONDENT Fairfield City Council
FILE NUMBER:	005020
HEARING DATES:	07/07/2000
SUBMISSIONS CLOSED:	07/07/2000
DATE OF DECISION:	07/07/2000
BEFORE:	Davidson R - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary issues as to jurisdiction
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANTS S Davis, barrister RESPONDENT A Macpherson, solicitor
ORDERS:	1. Objections to jurisdiction overruled; 2. Matter to proceed to hearing.

1 This is an application under the Retail Leases Act 1994. The application is by Daniel Prasad and Steven Walker as lessees against the Council of the City of Fairfield as Lessor. Mr Prasad and Mr Walker are the lessees of shop 4 in the Abbotsbury Neighbourhood Shopping Centre at 60-68 Stockdale Centre, Abbotsbury. That centre is a complex of shops comprising five shops altogether. It is frequently referred to in the evidence not only as the Stockdale Neighbourhood Shopping Centre but the Neighbourhood Crescent Shopping Centre and other descriptions.

2 In any event it is a complex of shops of which the Council of the City of Fairfield is the lessor and leases shops in that complex to various retailers carrying on various businesses. The applicants carry on the business of selling food for take away and for eating upon the premises and have six tables with chairs inside their shop and two tables outside their shop, that is shop 4. The applicants' food comprises essentially pizzas, roasted chickens, hamburgers, fish and chips, pasta, salads, sandwiches and items which go with the sale of those foods or are sold independently of those foods such as cool drinks and cappuccinos. The applicants' complain that the council is about to lease next door to shop 4, shop 5, for a pizza business. That business has been described as a Wood Fire Pizza business. The applicants have a significant pizza business and a sign above the premises in which they conduct their business reads Abbotsbury Food Gourmet Pizza. The applicants also, in addition to shop 5, allege that the council have exceeded the permitted use provision in its lease to the tenant of shop 1. That provision is as follows:

Permitted use: supermarket including delicatessen, video rental, fruit and vegetables sales, sales of newspapers, magazines and periodicals, mail point activities as authorised by Australia Post including selling stamps, lottery office and activities ancillary thereto.

3 The way in which the applicants allege that the council have permitted that provision to be exceeded and in fact is exceeded by the tenant is by what the applicants describe as a quasi restaurant as part of the business in shop 1, that is, so far as what that term means a sale of poultry cooked upon the premises and the provision of cappuccino coffee made upon the premises. It is unclear just what happens to those items but the items are consumed either off the premises or both off the premises and on the premises. It appears probably that they are consumed both off and on the premises.

4 The operation involves, according to the applicants, the provision of chairs and tables and those chairs and tables are probably both off and on the premises although that is unclear at the moment as to just where they are. It is also unclear what other items are involved but other items may be the subject of the business at shop 1 such as cold salads, cakes, sandwiches and rolls all made or prepared on the premises. The precise operation of shop 1 is unclear at the present stage but the above outline suffices to indicate the issues that shall be involved in respect of it.

5 The respondent has objected at the outset to the jurisdiction of the Tribunal to hear the present proceedings.

6 The matters debated between the parties essentially turned upon the aspect of whether or not the council was entitled to have shops in the premises which competed with the business of the applicants. The above outline clearly demonstrates the aspect that shops 5 and 1 shall clearly compete with the applicants; indeed, shop 5 shall compete with the applicant as a next door neighbour to the applicants in a very significant and direct way, namely, by the sale and consumption of pizzas.

7 The importance of the matter is demonstrated by the above but of course that aspect of importance and any aspect of sympathy for the applicants in respect to competition by other shops must not influence what is going to take place in this decision. The first matter which may be conveniently looked at is the way in which the applicants and the respondents have dealt with the aspect of jurisdiction and presented to the Tribunal at the outset the jurisdictional aspects surrounding the arguments as to law. The respondent has raised other matters and by agreement those matters are to be dealt with at a later stage.

8 The three matters essentially, so far as what is to be the subject of the present decision, turn upon the aspects of: (1) whether non-competition by other shops with the applicants is a term of the lease between the applicants and the council; (2) whether the council is estopped from denying the applicants the right to conduct their business without competition by virtue of the principles of promissory estoppel and (3) whether there is a collateral agreement as to non-competition between the council and the applicants.

9 The Retail Leases Act 1994 is an Act which is designed essentially to enable disputes in connection with retail leases to be determined in totality by the Administrative Decisions Tribunal. That appears, quite clearly, from the terms of section 70, section 71 and section 72 of that Act.

10 The provisions of section 75 of that Act underline that general approach, wherein it is stated:

The general principle is that retail tenancy disputes should be dealt with by the Tribunal rather than by the Court.

11 The matter, however, is not as simple as simply saying, as referred to above, that there is a legislative intention that the Tribunal should deal with all disputes as a general principle so far as within the powers it has; that is a general principle to be looked at, but the powers must fall within the provisions of the Act and be governed by the Act.

12 The first matter that is conveniently dealt with is the aspect that the applicants assert that the respondent is estopped from challenging jurisdiction by virtue of having appeared at various times before the Tribunal and having mediated the dispute before the retail leases unit and having only taken its objection to jurisdiction upon the day of the hearing itself and the parties being ready to proceed to a hearing up to that particular time, so far as the communications between them were concerned.

13 The applicants have pointed out that there is a letter from the solicitors for the respondent which gives the clear indication that the matter is to proceed without any objection to jurisdiction. Estoppel may be taken advantage of in not enforcing or not allowing a party to enforce an appropriate provision in a statute. The question to be decided is different. The Tribunal cannot be given jurisdiction by consent and indeed, no Court can be given jurisdiction by consent. It follows from that that jurisdiction is a matter of determining whether or not the powers of a statute give the Court jurisdiction.

14 It follows, that if one cannot give jurisdiction by consent, then a party, when a Court exercises a power, cannot consent to the exercise of that power when the power does not exist.

15 On that analysis the jurisdictional point is valid and may be taken and no question of estoppel arises. If the Tribunal acts outside its power it simply makes an order which the statute does not give it power to make and that is an impermissible order and a party cannot conduct itself or do anything to interfere with a jurisdictional matter. Indeed, it would be incumbent upon the Tribunal to see that it acted within the powers granted to it.

16 The three matters, accordingly, which the respondent raises are simply matters which must be looked at in relation to the powers referred to in the Act itself and those powers have to be examined. When I refer to the three matters, I refer to the dispute as to a term of non-competition in the lease, promissory estoppel and collateral agreement. The three matters arise in this way. The lease by Hanna Yousseff, Ann Yousseff, Raymond Yousseff and Salwa Yousseff for a term of four years, commencing on 13 June 1994 and terminating upon 12 June 1998 of Shop 4 from the council, for the use of a takeaway food outlet and restaurant, executed in July 1994 was by deed of assignment dated 14 November 1997, assigned to the applicants. The applicants, after that, exercised an option in that lease and they were granted another lease which does terminate some years hence, namely in 2002. Before that lease was executed by Hanna Yousseff, Ann Yousseff, Raymond Yousseff and Salwa Yousseff, it is alleged by the applicants that Hanna Yousseff had a conversation with Robert Mandarano, the property manager of the council's commercial and property services division, wherein Mr Mandarano represented to Mr Yousseff that no premises in the shopping complex would be leased by the council which competed with the applicants' business.

17 Further to that, the applicants allege that on that basis they entered into the leases referred to above by the applicants with the council and Mr Yousseff conveyed that representation to them before they did that. The respondent firstly submits that the Tribunal has no jurisdiction because the non-competition aspect does not come within the Act because the business which the applicants complain about as competitive is carried on in shops other than the applicants' shop. The Act in other words is so worded as to grant jurisdiction so long as a dispute arises between the applicants and the council in respect of their particular business as carried on but that the activities of other shops are outside the wording of the Act.

18 The respondent submits that the wording in section 63 of the Act referring to a dispute which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates, although wide words, must be read within context and when read within context the dispute provisions of the Act relate only to the carrying on of the particular business and not other businesses in the centre. The provisions of section 63 in totality are as follows so far as the definition of a retail tenancy dispute is concerned:

Retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates.

19 The evidence of the applicants shows that competition, particularly of a pizza shop next door to their pizza shop, means a significant loss of income. People who come to the centre as a common sense matter have two alternatives: the applicants' shop or the shop next door to go into to buy a pizza. It is only common sense, in my view, that in the circumstances the applicants in effect seek relief in respect of their shop. It is my view that once that is appreciated it clearly emerges that the width of the words in section 63 of the Act referred to above cover the present situation.

20 Attention is firstly directed to liabilities and obligations arising under the lease. The word "arose" is wide, however, the section secondly refers to the situation arising in connection with the use or occupation of the retail shop to which the lease or former lease relates. Those are even wider words than the words "arose under the lease". The words "in connection with the use or occupation" accordingly are to be given their usual wide interpretation and the context in which they are used in my view supports that wide interpretation rather than cuts it down.

21 Accordingly, that means that the applicants fall within the provisions of the Act in respect of a determination relating to non-competition by other shops subject to what is stated later on. The first aspect as to non-competition flowing from a finding against the respondent as to that matter is conveniently stated as follows. The representation relied upon is by Mr Mandarano to Mr Yousseff not by the council to the applicants. Mr Yousseff then made the representation to the applicants and not the council. The lease itself between the Yousseffs and the council contains an appropriate provision in clause 6 of it which reads as follows:

(6) Whole Agreement: the lessor and lessee expressly covenant and agree with each other as follows: (a) that the covenants, provisions, terms and agreements contained in this lease expressly or by statutory implication cover and comprise the whole of the agreement between the parties; (b) that no other oral covenants, provisions, terms or agreements whether in respect of the property or otherwise shall otherwise be deemed to be implied in this lease or to arise between the parties by way of collateral or other agreement by reason of any promise, representation, warranty or undertaking given or made by any party or his employee or agent to any other party or his employee or agent on or prior to the execution of this lease and (c) that the existence of any such implication, collateral or other agreement is hereby expressly negatived.

22 One may search in vain through the documentary material, apart from searching through that lease, to discern whether any non-competitive provision is contained in it. That is simply absent. The applicants point to their deed of assignment dated 14 November 1997 which recites:

The lessor has agreed to consent to the assignment of the lease by the assignor to the assignee subject to the terms, conditions and provisions contained in this deed.

23 The applicants submit that it is implied in that provision that the representation by the council to Mr Yousseff and Mr Yousseff's representation to them is implied as a term of the lease. However, the provision refers to the terms and conditions contained in the written document itself and not to matters outside the written document. The written documents as referred to and the lease and, indeed, all leases in this matter contain no such provision. The applicants face the simple position also that once a document is reduced to writing then one looks at the document itself. On its face there is no non-competitive provision in the lease which the applicants have and which they have gained from the Yousseffs. If there was such a provision in my view there is no doubt that the applicants would be entitled to an appropriate order restraining competition by other shops with them.

24 As I have said before, in my view the Act covers activities in other shops where that activity is appropriate activity in connection with the use and occupation of the applicants' shop and indeed as illustrated before, the applicants in effect would be seeking relief in respect of the provision in their lease if it was there. So that if there is a term of a lease which says that the council cannot grant a lease of a shop to compete with the applicants then in my view the applicants would be entitled to restrain the council from leasing that shop.

25 As stated the lease itself, which the applicants have so far as the shop is concerned, contains no such provision. The question, however, remains as to whether that aspect is an aspect which ought to be dealt with factually and upon hearing the whole of the evidence rather than simply as a jurisdictional aspect at the commencement of the proceedings. Matters may change in respect to the situation during the course of any hearing. The principles which relate to rectification accordingly, in my view, have substantial significance as to that particular matter.

26 The parties have not debated before me the aspects of rectification, any aspects relating to the requisite criteria and principles relating to rectification of leases. The respondent has been content simply to put its ground of objection upon the basis that the Retail Leases Act 1994 gives no power to the Tribunal in respect of the rectification of leases. Common mistake, mutuality and all types of questions are involved in considering rectification.

27 The aspect of whether or not the question of rectification is one which is able to be relied upon by the applicants assumes, in view of the position as outlined above, substantial importance in the present matter. If it is able to be relied upon then it is my view that the matter ought to be dealt with as a factual matter and determined after hearing the whole of the evidence. If it is not able to be relied upon then it is my view that having regard to the aspects outlined by me above the first question should be answered in favour of the respondent.

28 The Retail Leases Act 1994 contains two sets of provisions in part 8 headed "Dispute resolution" in respect of determinations of claims by the Administrative Decisions Tribunal which require to be analysed. As stated by me if the respondent is successful that rectification cannot be considered by the Tribunal then it is my view that the terms of the lease do not preclude competition and the respondent must succeed on that point. However if rectification can be considered then in my view the Tribunal should hear the whole of the matter and deal with the matter as a factual situation at the end of the case having regard to the whole of the evidence. Indeed, as outlined by me above, that is what the respondent essentially asserts in this matter, that what the applicants' position is, that rectification must be relied upon and the Tribunal has no powers in respect to that. Section 70 of the Retail Leases Act 1994 states that:

A retail tenancy claim means any of the following:- (a) a claim in connection with a liability, or obligation with which a retail tenancy dispute is concerned being (i) a claim for the payment of a specified sum of money; (ii) a claim for relief from payment of a specified sum of money; (iii) a claim for the doing of specified work or the provision of specified services; (iv) a claim for the surrender of possession of specified premises; (v) a claim for assignment of rights under a lease, or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee; (vi) a claim for relief against forfeiture; (vii) a claim regarding the rectification of the lease; (viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations; (ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease; (x) without limiting the generality of subparagraph (i) a claim for compensation under section 10.

Section 72 of that Act is as follows:

72(1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate: (a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages, or restitution, or refund any moneys paid by a specified person. (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. (c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or (ii) surrender possession of specified premises to another person, or (iii) assign his or her or its rights under a lease to a specified person, or (iv) do or perform or refrain from doing or performing, any specified act, matter or thing. (d) an order granting a party to the proceedings relief against forfeiture. (e) an order by consent of the parties requiring the parties to the proceedings to rectify a lease. (f) an order: (i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or (ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or (iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not. (g) such other order in the nature of an interlocutory order of a kind referred to in paragraphs (a) - (f) as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties. (2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect. (3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section. (4) The Tribunal may make an interim order under this section pending final determination of a claim if it appears to the Tribunal desirable to do so.

29 The respondent submits that in view of the terms set out above of section 72(1)(e) providing that an order can only be made by consent in the proceedings to rectify a lease, then the Tribunal is not in a position to hear anything further in the present matter in respect of the aspect that the non-competition of other shops is a vital part of the lease itself and a term of the lease. The words used in section 70 of the Act are words which grant jurisdiction to the Tribunal to hear the types of claims referred to in them. In section 70(vii) a claim regarding the rectification of the lease is specified without any limitation. That, however, is contrary to the wording contained in section 72(1)(e) referred to above. Both sections in my view are jurisdictional sections, power and jurisdiction each have the meaning of jurisdiction and are interchangeable in various legislation, however, in this particular instance section 70 obviously contains the delineation of the jurisdiction of the Tribunal and section 72 obviously gives the Tribunal the power to make particular orders to more appropriately exercise that particular jurisdiction.

30 Having regard to the width of section 63 of the Act previously referred to, and the overall legislative claim provisions and the structure of the Act itself, it is my view that the Tribunal is empowered with jurisdiction to hear evidence and go into matters which reflect upon the aspect of rectification and may appropriately be given effect to in other ways by the provisions contained in the Act itself. It necessarily follows that if the legislature had intended anything else, apart from the context in which the claim provisions are enacted, that would have been stated in section 70, which is really the jurisdictional matter so far as a claim is concerned.

31 The other section, namely, section 72, is merely an empowering provision as to appropriate orders to more effectually exercise the jurisdiction granted. However, jurisdiction is granted in respect to the claim of rectification without restriction by section 70 of the Act. In addition to that, jurisdiction is granted and is reflected again in section 72 of the Act to make and to claim a declaration of rights and liabilities and obligations of the parties under law whether any consequential relief is or could be claimed or not. That fits in with the overall intention that the Tribunal can hear evidence and has a wide jurisdiction to make any type of declaration giving effect to disputes and liabilities, both under a lease and disputes and liabilities in respect of the use and occupation of the premises.

32 It follows accordingly from that that the aspect of a term of the lease must, in my view, as an appropriate matter, be determined factually and in the light of the whole of the evidence in this particular matter and there is ample power to give effect to that in the Act itself either by awarding a claim for damages, or making an appropriate declaration, or dealing with it by way of other orders. The restriction in section 72, as stated above, is not reflected in section 70 which is the jurisdictional section. Section 72 is ancillary to section 70 and simply refers to the casting of the orders after the claim is heard.

33 I, accordingly, on the first objection, take the view that the matter ought to proceed and be determined, having regard to the evidence and the factual situation emerging in the light of the whole of the cross-examination and the evidence as it emerges at the end of the hearing.

34 The next question that the respondent raises as an objection to jurisdiction is that relating to promissory estoppel. That turns essentially upon the representation made by Mr Mandarano. Mr Mandarano has sworn that he had no authority to conclude agreements and terms and conditions by the council. The applicants have not disputed that statement. However, the evidence does show he did have ostensible authority and also actual authority, it appears, to negotiate with lessees and to communicate to lessees decisions of the council.

35 The dissection of the principles of promissory estoppel essentially focus upon the aspect of unconscionability. Unconscionability, in other words, underlies them. Broadly, in my view, what is required to be proved is, (1) a false assumption or expectation by the innocent party; (2) an attempt by the guilty party to act contrary to that assumption or expectation; (3) if the guilty party is permitted to so act injustice or unconscionability would occur. Those are fundamental ingredients but inevitably there are other ingredients such as, for instance, detriment, reliance and knowledge by the guilty party as manifestations, although they may not always be necessary but it is appropriate to express them as elements and generally they must be found.

36 The subsidiary aspects or additional aspects to be looked at in determining the overall situation of unconscionability are, for instance, (1) whether or not the guilty party induced the innocent party to form or act on an assumption or expectation whether by making a representation or promise and/or by encouragement, acquiescence silence or otherwise; (2) the innocent party acted or abstained from acting on the assumption or expectation; (3) the guilty party intended the innocent party to so act or abstain or had knowledge, or probably ought to have known, that is, that it was within his reasonable expectation that the innocent party was so acting or so abstaining and presumably realised or ought to have realised the detrimental consequences; (4) the innocent party irreversibly suffered some detriment, which detriment resulted from the denial of the correctness of his assumption or expectation or resulted from his reliance on the correctness of that assumption or expectation.

37 There are two other matters which the authorities disclose and they are, firstly, the assumption or expectation must be reasonable in all the circumstances and, secondly, estoppel may only be founded upon an assumption or expectation as to the certainty of what is the position or what will occur. Reasonable expectation of a certainty is necessary, not a probability, it appears.

38 In this particular case the aspect of rectification must be an influencing factor in respect of whether or not the applicants are able to do something about the lease itself, or to say something about it. A situation may arise of seeing whether the assumption or expectation created by the representation by Mr Mandarano to Mr Yousseff may reasonably be retained or is at an end upon entry into the particular lease. That is also bound up with what I've stated above as to the expectation of a certainty rather than a probability.

39 It is bound up with the question for determination in the light of that of whether or not a chain or channel in respect of the representation has been cut off by entry into the lease itself. That, as referred to, is bound up with the aspect of rectification. Once that aspect is found against the respondent, in my view, the second matter of objection namely estoppel should also be found against the respondent subject to an examination of the Act to see whether the second aspect comes within the terms of the Act so far as jurisdiction is concerned. Turning to that aspect it has elements of factual matters and also elements of whether or not the appropriate inference may be inferred, having regard to the whole of the evidence, or whether the representation continues on despite the lease itself and continues on as a reasonable expectation.

40 That, as referred to, is a factual matter and, indeed, having regard to the whole of the evidence, it may emerge at the end of the case that the expectation did, in fact, continue on and was not broken. The aspect, however, of promissory estoppel is wider than simply authority to bind the council in respect of terms. It, for instance, extends to an aspect of the council having clothed Mr Mandarano with power to negotiate and to act as a conduit, an authority to communicate, stands by and does nothing. It may, as a factual matter, have to be determined whether there are aspects falling within what I've stated above to be looked at in the light of that particular situation and looking at the particular situation in the light of what knowledge ought to be fixed with the council and what reasonable expectation ought to be fixed; that is, whether the council ought to have realised the position and done something to correct it or whether or not simply the representation suffices.

41 The first matter can only be looked at and the second matter, I think, also in the light of the whole factual context and the whole situation emerging as to what took place between the council and the whole of the circumstances. Accordingly, it is my view that that matter should be resolved against the respondent subject to the aspect as stated that I am obliged to look at whether the matter of promissory estoppel may be determined within the meaning of the Act. As referred to above, the jurisdictional provisions of section 70 are enacted within the particular context of a wide definition of retail tenancy dispute in section 63 and a wide general provision as to putting these retail tenancy disputes into the hands generally of the Tribunal.

42 The applicants rely upon section 70 which refers only in subparagraph (a)(i) to the payment of a specified sum of money. The applicants also rely upon section 70(a)(ix) which refers to the Tribunal having the jurisdiction to make a declaration of the rights and liabilities of the parties. The applicants also are relying upon section 70(a)(x) which refers to the power to make a claim for compensation and, indeed, also rely generally upon the power in relation to rectification, as referred to above. The respondent points to the powers contained in section 72 of the Act and specifically 72(1)(a), which is not in the form contained in section 70 but adds matters to it, namely, the words "whether by way of debt, damages or restitution or refund any moneys paid by a specified person".

43 The simple answer to everything, of course, is that where section 72(1)(a) refers to damages, that, of necessity, is a section which adds or does something in respect to section 70, as outlined above, but does not do anything else except to indicate the generality of the jurisdiction and the width of the jurisdiction which is given otherwise the two sections do not mate up together and that interpretation fits in with the width of the jurisdiction otherwise. Damages, however, include within their ambit, damages in respect to equitable relief.

44 One only has to look at section 68 of the Supreme Court Act 1970, to appreciate that. That section provides that the Court has power to grant an injunction against the breach of any covenant, contract, or agreement, or against the commission, or continuance of any wrongful Act, or to order specific performance, of any convenant, contract, or agreement and may award damages to the party injured either in addition to, or in substitution for the injunction, or specific performance.

45 The terminology fits in with damages being able to be awarded in respect of this particular matter, but not only that, the present matter is not simply a matter of damages but a matter of the Tribunal being granted the specific power under section 72, to not only declare the rights and liabilities of the parties in law, but to make an injunctive order, or rather an order in the form in section 72(1)(c) which, in effect, is an injunction, for a party to do or perform, or refrain from doing, or performing any specified act, matter, or thing.

46 It is quite clear in view of the width of those provisions that they cannot be cut down by saying that any equitable type of relief is involved and the Tribunal does not have power by virtue of that and does not have power to award damages in an equitable sense. The wording of the sections is wide and one has power, for instance, to grant relief against forfeiture which is an equitable right and is given to the Tribunal. The sections, as they say, specifically grant equitable powers and specifically grant injunctive powers to resolve the necessary disputes.

47 That resolves the second question which has been argued against the respondent and the question in my view of promissory estoppel and what is to take place as to that, is properly looked at, not in a summary way, but in the light of the whole of the evidence and determined in the light of the whole of the evidence, and looked at in the light of cross-examination and how the particular matter emerges. It is only necessary to appreciate that litigation fluctuates and changes and balances itself and weighs and balances one side against the other who may be at advantage and maybe succeeding, but may topple as the case proceeds; one in dealing with the matter factually at the present stage would, in my view, be at a risk of causing injustice to one party or the other.

48 In respect of the third aspect of a collateral agreement, in my view the applicants at the present stage do face difficulties as to that as a factual proposition. They have been unable to point to any aspect between themselves and the council by way of a previous agreement to the subject lease for consideration as to non-competition. They also have not been able to point to aspects which so far as themselves and the council are concerned, indicate some promissory representation by the council to them in consideration, as referred to above, for them entering into the main lease. Whether or not the main lease is inconsistent with the collateral agreement also is a question which may have to be determined in the light of the whole of the evidence. However, as stated above, that aspect falls within the same category as the other aspects and, in addition to that, it is my view that despite the difficulties referred to above in respect to a collateral agreement, that an injustice may occur if one takes the procedural step of dealing with it factually rather than awaiting cross-examination on the whole of the evidence and looking at it in that light.

49 That is again subject to the aspect of the powers contained in the Act. It sufficies to state that what I have set out above simply means that that aspect falls within the same type of consideration and is an aspect which may be the subject of a claim to be determined by the Tribunal and for the reasons set out above, that aspect of jurisdiction at the outset must also be determined as against the respondent.

50 In respect of what has been raised in relation to shop 1, there cannot be any objection to jurisdiction relating to shop 1, having regard to my determination that the carrying on of the business in shop 1 in a way exceeding its lease and competing with the applicants impinges upon the applicants' activity and is a claim in respect to and in connection with the applicants' lease.

51 The orders which are sought in respect to shop 1 relating to damages and an injunction are accordingly, for those reasons, also available to the applicants.

I, accordingly, determine the objection to jurisdiction to hear the claim against the respondent and, in my view, the proceedings ought to be determined.