Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings

[2009] NSWADT 237

CITATION:	Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings [2009] NSWADT 237
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Satchi & Satchi Australia Pty Limited REPSONDENT Zeaiter Corporate Holdings
FILE NUMBER:	085133
HEARING DATES:	2 July 2009
SUBMISSIONS CLOSED:	2 July 2009
EXTEMPORE DECISION DATE:	2 July 2009
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Reasons for refusal of Interim Application
REPRESENTATION:	APPLICANT In person RESPONDENT D Edwards, solicitor
ORDERS:	Application for urgent interim relief, being for access to premises and associated Orders, refused, no Order for costs.

REASONS FOR DECISION

1 The Applicants filed an Application for Urgent Interim Orders on 21 August 2008. Eleven Orders were sought which, as I indicate later on in these reasons, in the main appeared to me to closely reflect the Orders sought in the substantive matter (which is now listed to be heard at the end of this month).

2 I believe that I dealt with the thrust of the first (and some other) of the Orders sought when they first came before me.

3 That Order (number 1) was for an almost immediate surrender to the Satchis of the premises which had been locked against them. Although there is no transcript of the first Directions Hearing in this regard, I am satisfied that on that occasion I refused that Order for the reasons which I repeated on Thursday 2 July 2009. They are that, if a Lessee wishes to re-enter premises which have been locked against him or her, then, especially if the reason for the lock out be a rent dispute, then I expect there to be a payment on account of rent during the period of such re-entry. In my view there has to be some compliance with the primary obligation of the Lease, which is to pay the rent.

4 It appears to have been Mr Satchi’s position that he had severely overpaid the rent in the past, and now wished that to be taken as a credit against future rent, and so wished to reoccupy without payment. In other words “if I succeed, they will owe me a large amount of money and I wish to use that now against future rent which I would have to pay if I am let back in”. The obvious “catch” is that if the Application is unsuccessful, the Applicant would be much further in debt for rent which he acknowledges that he cannot afford to pay.

5 I have made it clear in the past, and now reiterate that interim applications of this kind should only be made by those who are able to propose an appropriate “holding situation” which result in the arrears or disputed amounts being put to one side for later decision upon all of the evidence, and accept a current situation somewhat akin to “business as usual”, paying a current amount for the right of occupation to continue to trade.

6 Often, in such circumstances, the stay of proceedings is given on a self executing basis, in the sense that the order for the stay is to lapse without further Order of the Tribunal if specified regular payments are not made on their due date. In the present instance Mr Satchi made it clear that he had no funds and I said to him:- “I have made my view clear, very, very often that if a Lessee has been locked out for apparently good reason, usually something to do with the rent, if they want to get back in there has to be some proper compliance with the primary obligations under the Lease, which are to pay the rent”.

7 However that did not dispose of the other ten Orders sought, and Mr Satchi was given opportunities to file Affidavit evidence in support of those further Interim Orders. He failed to do so, the only Affidavits in the file are his of 6 September 2008 and 21 May 2009. Both address matters in the substantial Application which, as I have indicated earlier, is being heard later on this month, and do not appear to address any of the matters which would justify the making of Orders of an interim kind.

8 On the file there is a letter from Mrs Satchi dated 2 July 2009, which is certainly aimed at the Interim Application, but supplies no independent evidence other than to raise the fact that the Interim Application has been in the list for nearly a year. The reason why it has been in the list for a year is because no one has complied with the various Directions aimed at having separate evidence filed in support of that Interim Application. I note that Molloy JM gave directions in this regard on 6 November 2008, and repeated those on 16 January 2009. I made a similar observation at Directions on 21 May 2009, giving Mr Satchi leave to file Affidavit evidence in support of his Interim Application. None of those Orders have been complied with, and there is no independent separate evidentiary material in support of any urgency, or raising any matter which would justify a preliminary consideration.

9 It seems to me that Mr Satchi’s Application is really for just that, a kind of preliminary appraisal of his primary Affidavit in the hope that that consideration will give rise to some temporary Orders which would almost mirror Orders which he would hope the Tribunal to make if he were completely successful in the ultimate contest (when the evidence would have been fully tested).

10 Whilst I can conceive of situations where, on appropriate independent evidence being brought, such a step might be contemplated (and I stress that that situation has not arisen here because I have been given no evidence), it would certainly be of no utility now, when the final hearing of the matter is to take place within 2 or 3 weeks.

11 Turning to the detail, Orders 2 and 3 are refused because they are based on the assumption that the Applicants can prove that they entitled to receive the rents paid by the third party “Bitumen”, or alternatively, are entitled to a set off for those rents. Order 4 is refused because it is of no utility, it seeks a declaration that the Applicants are not required to pay rent or outgoings from the time of commencement of the dispute until final determination of the matter. Whilst that may be proper as an interim measure, it is of no moment now because the Applicants have not been paying the rent, and to make an Order now, on an interim basis, would only cover the period from now until the decision on the substantive matter.

12 Order 5 is refused because it is simply a restatement of Order 1, which I have already rejected.

13 Orders 6 and 7 appear to merely seek the damages which would be payable if the Applicant is successful in the substantive proceedings, and I can see no basis in law for granting those Orders, no matter how compelling the reason might be brought for an Interim Order.

14 Orders 8 and 9 seek the preceding Orders (or some of them) to be imposed on the Second and Third Respondents, and are refused for the same reasons.

15 The last Order seeks costs, and that is refused, the Applicant having been entirely unsuccessful.