Sewing Machine Warehouse Pty Ltd v Pavitt Industries Pty Ltd

[2012] NSWADT 282

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Sewing Machine Warehouse Pty Ltd v Pavitt Industries Pty Ltd [2012] NSWADT 282
Hearing dates:	15 November 2012
Decision date:	15 November 2012
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President
Decision:	Application dismissed.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Corporations Act 2001 (Cth) Retail Leases Act 1994
Category:	Interlocutory applications
Parties:	Sewing Machine Warehouse Pty Ltd (Applicant) Pavitt Industries Pty Ltd (Respondent)
Representation:	L Grech (Applicant, agent) D Reardon (Respondent, agent)
File Number(s):	125162

REASONS FOR DECISION

1. On 12 November 2012, the applicant, Sewing Machine Warehouse Pty Ltd, as lessee of premises owned by the respondent, Pavitt Industries Pty Ltd, lodged a retail leases claim, under s 72 of the Retail Leases Act 1994 (RL Act), seeking an order that the respondent accept the applicant's proposed management plan for the removal of the asbestos in the leased premises. The applicant also made an application for an urgent interim order to stay the respondent's intended lockout of the applicant from the leased premises.

1. The applicant's interim order application came before me on 15 November 2012. After hearing short submissions from the parties and considering the documents that were filed, on the application of the respondent, I dismissed the applicant's application for an interim order and its substantive application on the grounds that the tribunal did not have any jurisdiction to hear and determine them. At the time I also gave some brief oral reasons for my decision.

1. A request has been made for written reasons for my decision and these are those reasons.

The lease and the contentions of the parties

1. The parties entered into a written lease in regard to the premises. It was a three-year lease, with an option to renew for a further three years. The lease commenced on 26 July 2010. The use of the premises was stated to be 'sewing machine industrial sales and repairs.'

1. It was the contention of the respondent that the lease was not a retail shop lease and even if it was such a lease, the applicant had been placed into administration and the administrators had written to the respondent, on 31 October 2012, disclaiming the lease of the premises under s 443B of the Corporations Act 2001 (Cth). As to the use of the premises, the respondent said that they were part of an industrial centre and that it was an 'industrial factory' and not a shop. The respondent had raised this jurisdiction issue prior to the hearing of the interim order application and also put the applicant on notice that it would be making an application to have the matter dismissed.

1. Mr Grech, the director of the applicant, contended that his company was no longer in administration and that it had been returned to him. However, he did explain that it had been returned to him under a deed of arrangement with the administrators. In regard to the use of the premises, Mr Grech said the premises were used for 'sewing machine repairs, retail and industrial'. He went on to say:

'it's a large warehouse, its 850 square metres, 100 square metres is the shop retail, the rest is workshop, storage, my son has a car repair business as well.'

1. Mr Grech conceded that the applicant repaired and sold industrial sewing machines. He also asserted that sewing machines generally had become larger and that the applicant also sold and repaired these. The number that were sold he could not say.

Tribunal's jurisdiction

1. The applicant's claim is brought in the original decision making jurisdiction of the tribunal: see ss. 36 and 37 of the Administrative Decisions Tribunal Act 1997 and s.71 of the RL Act. Subs 71(1) provides that a party or former party to a 'retail shop' lease may lodge a retail tenancy claim in respect of the lease with the tribunal.

1. There is no dispute that the applicant and the respondent were a party to a lease of the subject premises. The question is whether it was a lease in respect of a 'retail shop', which is defined in s. 3 to mean:

retail shop means premises that:

(a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or

(b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre.

Note 1. Section 5 limits the retail shops to which this Act applies.

Note 2. Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made.

1. There was no dispute that the premises the subject of the lease was not in a shopping centre. Accordingly, paragraph (b) does not apply.

1. The applicable paragraph of the meaning of a retail shop is paragraph (a) and as identified in the abovementioned note, the businesses prescribed for this purpose are those set out in Schedule 1 of the RL Act: see cl. 17 of Schedule 3 of the RL Act. S. 5 of the RL Act sets out those retail shops to which the RL Act does not apply (e.g. a retail; shop with a lettable area of 1,000 square metres or more) - it is of no application to this application.

1. Included in that list of businesses at Schedule 1 of the RL Act is: 'Sewing machine shops (sewing materials, needlepoint and craft related items)'. There is no reference to a sewing machine repair shop on the list at Schedule 1 nor does the list make reference to any other form of repair shop.

Consideration

1. It is well accepted that the particular nature of premises from which a business is being conducted will not necessarily be determinative of the question as to the nature of that business. This must be determined from the permitted use as described in the lease and any other relevant information.

1. As I have explained, the express use of the premises in the lease the subject of this application is industrial sales and repairs of sewing machines. The evidence of Mr Grech is consistent with this. Nor did Mr Grech say that the applicant used the premises to sell materials, needles or other sewing items. I accept his evidence that the applicant sold some sewing machines for non-industrial purposes, however I am not satisfied that this was the most predominant aspect of the applicant's business. On the contrary, it appears to be repairs and sales of industrial sewing machines.

1. Accordingly, I find that the lease the subject of this application is not a retail shop lease. Accordingly, the tribunal has no jurisdiction to hear and determine the applicant's application for an interim order or to hear and determine its retail leases claim. This does not mean that the applicant does not have a claim against the respondent. If it does have such a claim, it is a claim that must be pursued in another forum. However, as I explained to Mr Grech, he should seek some advice in regard to the FORM 509B, the administrators of the applicant sent to the agent of the respondent, on 31 October 2012, in regard to their disclaimer of the lease.

Orders

1. For the reasons set out above, the appropriate order is to dismiss the applicant's application on the grounds that the Tribunal has no jurisdiction to hear and determine this application.

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Decision last updated: 25 February 2013