Pyrmont Point Pty Ltd (ACN 145199784) trading as "Red Bottle" v Westacott
[2014] NSWCATCD 40
•25 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Pyrmont Point Pty Ltd (ACN 145199784) trading as "Red Bottle" v Westacott [2014] NSWCATCD 40 Hearing dates: Determination on the papers Decision date: 25 March 2014 Jurisdiction: Consumer and Commercial Division Before: G Mullane, Senior Member Decision: 1. The application by Pyrmont Point Pty Ltd is dismissed for want of jurisdiction.
Catchwords: Retail Leases Act 1994 para 6(1)(b) - application of Act excluded - Lease and options total 25 years. Legislation Cited: Retail Leases Act 1994 Category: Principal judgment Parties: Pyrmont Point Pty Ltd (ACN 145199784) trading as "Red Bottle" (applicant)
Albert Victor Westacott (respondent)Representation: Mr J B Conomy, Selbourne/Wentworth Chambers for the applicant
Mr JC Martin, JDK Legal Solicitors for the respondent
Mr Patrick Woods, RJL Legal, Solicitors, for the respondent
File Number(s): COM 14/16402
reasons for decision
INTRODUCTION
These proceedings were commenced under the Retail Leases Act 1994 by Pirrama Pty Ltd as tenant against Mr Westacott as landlord.
The proceedings were listed for directions on 21 November 2013 by the Registrar of the Administrative Decisions Tribunal as a result of the Affidavit of Patrick John Woods of 13 November 2013 being filed. That Affidavit raised 2 objections to the application, including an objection as to jurisdiction.
THE OBJECTIONS
The first objection is that the Retail Leases Act does not apply because para 6(1)(b) of the Retail Leases Act 1994 excludes the application of the Act to the lease.
The second objection was that the applicant is not the tenant of the relevant premises as the lease was assigned by the applicant to Pyrmont Point Pty Ltd on 15 September 2010.
DIRECTIONS HEARING
At the Directions Hearing on 21 November 2013 the second objection was overcome. Orders were made substituting Pyrmont Point Pty Ltd as the applicant in lieu of Pirrama Pty Ltd.
Orders were also made on that occasion for the applicant to file and serve submissions by 4 November 2013, the respondent to file and serve submissions by 11 November 2013, and the applicant to file and serve any submissions in reply by 13 December 2013.
It was ordered that the issue of whether the Retail Leases Act 1994 applied would be decided on the papers.
The applicant relies upon the Affidavit of its solicitor, Mr Martin, filed 29 November 2013. The respondent relies upon the Affidavit of its solicitor, Mr Woods of 13 November 2013 and its submission filed on 16 December 2013. No submissions have been received from the applicant.
SUBSECTION 6(1)(b) of the RETAIL LEASES ACT 1994
Subsection 6(1)(b) of the Retail Leases Act 1994 provides:
6 Leases to which Act does not apply
(1) This Act does not apply to any of the following leases of retail shops:
(b) leases for a term of 25 years or more (with the term of a lease taken to include any term for which the lease may be extended or renewed at the option of the lessee),
INTERPRETATION AND APPLICATION OF PARA 6(1)(b)
The original lease was registered no. AA573542. It was for a term of 5 years from 19 March 2004. It provided four options for renewal (exercisable by the tenant) with each renewal to have a term of 5 years. The lease was renewed pursuant to the option as the current lease AA587047S for the period of 5 years from 19 March 2009. The total of the original term and the renewals at the lessee's option is 25 years.
It might have been argued by the applicant that once the head lease had expired the terms of current lease and remaining options became less than 25 years and that para 6(1)(b) therefore does not apply. But such an interpretation of the provision is not open because of the words used. The intention of the draftsman to not limit the application of the paragraph to the current lease term plus the terms of the remaining options for renewal is clear. It does not refer to "lease" but to "leases' and makes it clear that in deciding whether the paragraph applies one has to take the total of the terms of the original lease and the terms of any further leases under any options for extension or renewal, whether already exercised or remaining yet to be exercised. That total is 25 years.
It is therefore clear that paragraph 6(1)(b) applies to exclude the application of the Act to the original lease AA573542, the current lease and any other lease that may arise if the lessee further exercises the option to renew the lease.
The application is therefore dismissed for want of jurisdiction.
(signed)
G Mullane
Senior Member
Civil and Administrative Tribunal of New South Wales
25 March 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 20 June 2014
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