Skiwing Pty Ltd v Trust Company of Australia Ltd
[2003] NSWADT 190
•08/28/2003
CITATION: Skiwing Pty Ltd v Trust Company of Australia Ltd [2003] NSWADT 190 DIVISION: Retail Leases Division PARTIES: APPLICANT
Skiwing Pty Ltd trading as Cafe Tiffany's
RESPONDENT
Trust Company of Australia Ltd (Stockland Property Management Ltd)FILE NUMBER: 035036; 035053; 035066 HEARING DATES: 30/07/2003 SUBMISSIONS CLOSED: 08/19/2003 DATE OF DECISION:
08/28/2003BEFORE: Donald BG - Judicial Member APPLICATION: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Retail Leases Act 1994 CASES CITED: Blair v Curran (1939) 62 CLR 464
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3
Commonwealth of Australia v Sciacca (1988) 78 ALR 279REPRESENTATION: APPLICANT
A Tonking, barrister
RESPONDENT
J Ratanatray, solicitorORDERS: 1. Strike out application dismissed.; 2. Applicant to amend Applications as directed.; 3. Matters listed on 18 September 2003 at 12 noon.
1 This is a common interlocutory application in Applications 035036, 035053,035066, being applications by the Lessee against the Lessor in relation to disputes arising under the Lease between them in respect of shop C19 in the Imperial Arcade in Sydney. The Lessor seeks to strike out all 3 Applications.
2 In a previous Application 025117 (“the Sign Claim”) the Lessee claimed that the Lessor had breached its entitlement to display a sign advertising its business in breach of its rights under the Lease. That matter was not formally pleaded, as is common with proceedings in this jurisdiction. However the formulation of that claim both in the principal application and in the urgent interim application, as well as in the subsequent submissions filed by the Lessee Applicant and by the Lessor Respondent were all quite clearly confined to a single issue between the parties concerning the entitlement to display advertising signs.
3 The Tribunal ruled in the Lessee's favour at [2002] NSWADT 278 by ordering that the Lessee be entitled to display signs and reserved its decision as to whether the Lessee could establish any basis for compensation flowing from the breach.
4 By these three further Applications the Lessee brings claims relating to other issues between the parties:
5 The Lessee in drafting the Applications is represented by its principal, Mr Stojanoski who has expressed the three claims in an expansive and imprecise manner but substantially to the above effect.
(a) 035036 — The Balcony Claim, is a claim expressed to be for compensation under s.10 of the Retail leases Act that the Lessee was induced to enter into the Lease on the basis of a representation that the Lessor would include plans for an external balcony in a forthcoming renovation of the Shopping Centre.
(b) 035053 — The Tables and Chairs and Re-location Claim, claiming a right for the Lessee to locate certain tables and chairs in the common areas of the Shopping Centre and for loss caused by the issue of certain re-location notices under the Lease.
(c) 035066 — The Renovation claim, claiming loss for non-disclosure of renovation and loss caused by a renovation.
6 The Lessor seeks first to strike out the three further claims and failing that to have them consolidated into a single claim subject to the Tribunal's $300,000 limit of jurisdiction.
7 The strike out application asserts that by reason of an Anshun estoppel, res judicata or issue estoppel the Lessee is precluded from bringing the claims because of the decision of the Tribunal in 025117, the Sign Claim. The strike out also asserts the claims are limitation barred by s.71(2) of the Act.
8 Having heard the submissions of the Lessor as to Anshun estoppel and res judicata, the Tribunal did not call on the Lessee and indicated that it was not satisfied that on either of those two principles the three claims should be struck out. In relation to issue estoppel the Tribunal permitted the Lessee to file further submissions with a reply by the Lessor.
9 The reasons for the Tribunal rejecting the strike out application on the ground of Anshun estoppel or res judicata may be simply put. These are principles which seek to ensure that disputes between parties once determined cannot be re-opened. They seek to bring finality to legal proceedings.
10 Whereas res judicata prevents a Court or Tribunal considering again the particular matter which has been the subject of a decision in litigation between parties, the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3, extend the requirement of finality to other issues between parties which were directly related to the matter in the decided litigation such that they properly belonged to the subject of that litigation. The High Court held that an estoppel arose because the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it in relation to the first action.
11 The Tribunal is firmly of the view that even though the issue in Application 025117 arose from the lease relationship between the parties, it was specifically confined to the question of whether the denial of a right to display signs was in breach of the lease relationship. These three later claims are based on representations and matters which bear no factual relationship to the placing of the sign. None of the three subsequent claims constituted the subject matter between the parties that has been resolved by the Tribunal’s decision in 025117 such as to be barred by res judicata. Nor are they so properly related to the first claim that it could be said they should have been raised in relation to and as part of that claim so as to give rise to an Anshun estoppel.
12 The next question is whether any of the subsequent three claims are barred by an issue estoppel. This is a further principle seeking to ensure finality and non-duplication of litigation such that where a particular issue has been specifically addressed and determined in litigation between parties, it cannot be re-litigated. The most authoritative statement of the principle is in Blair v Curran (1939) 62 CLR 464, per Dixon J., 531-2:-
13 The Lessor’s claim here is that in Application 025117 the Tribunal has specifically made a finding on the question of whether representations were made and relied upon between the parties in the entering into the current lease. While that matter was specifically in relation to representations concerning the right to locate the advertising sign, in para 9 of the decision, [2002] NSWADT 278, the Tribunal referred to the terms of the Lessor’s and Lessee’s Disclosure Statements exchanged between the parties prior to entering into the Lease in about March 2000 to commence 1 May 2000.
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties…The estoppel covers only those matters which the prior judgment…necessarily established as the legal foundation or justification of its conclusion,… Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.
(Approved in Anshun at 36 ALR pp8-9; followed by the full Federal Court in Commonwealth of Australia v. Sciacca (1988) 78 ALR 279.)
14 The Tribunal stated in general terms, having regard to the Disclosure Statements:-
“The only possible conclusion on the facts was that no agreements or representations were asserted to be relied on by the Lessee other than in the Lease.”
This finding specifically related to representations alleged to have been relied on in entering into the Lease.
15 However, in the result the decision in 025117 was not based on the existence of a prior representation but on a determination that a consent had been granted after the commencement of the Lease pursuant to provisions relating to consent covering matters including the placement of signs in common areas. Therefore in terms of Dixon J.’s formulation of the principle of issue estoppel, the determination as to prior representations was not an essential ingredient in the final decision of the Tribunal; it was not “legally indispensable to the conclusion”.16 Accordingly I do not accept the submission of the Lessor in this strike out application that because there was a general finding as to reliance on representations prior to entering into the Lease in entering into the Lease, the Lessee would be estopped from asserting in the three subsequent matters that the Lessee had relied on any pre-Lease representations in entering into the Lease as a relevant ingredient in any of the claims.
17 However as the Tribunal has made a specific finding to that effect, having reviewed the circumstances surrounding entering into the Lease, the Applicant obviously faces a serious problem in basing any of the subsequent claims on prior representations on the basis of which the lease was said to have been entered into.
18 On the other hand this problem would not apply to any claim properly within the Act, and subject to the limitation issue discussed below, based on a representation said to have legal consequences separate from reliance on it in entering into the Lease, if there be such a representation.
19 The next issue in the interlocutory application is that a relevant limitation period may apply in relation to the three claims pursuant to s.71(2) of the Retail Leases Act which provides that:-
20 The Lease was signed on behalf of the Lessee in December 1999 and the Lessor in March 2000 so if the liability or obligation the subject of the claims is the entering into the Lease or the making of representations prior thereto, there is a real limitation issue. However insofar as the claims are properly formulated as ‘retail tenancy claims’ within the jurisdiction of the Tribunal, and assert conduct relating to relocation or renovation constituting a subsequent breach of the Lease terms or of the statutory provisions imported into the Lease as to disturbance, or assert actionable representations made during the currency of the Lease, then s.71(2) would apply not from the date of entry into the Lease but from the date of the alleged breach or representation.
“ A claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose.”
21 It is common for limitation issues not to be permitted as the basis of a strike out but in a jurisdiction such as in this Tribunal where parties do not face costs except in special circumstances, that approach needs to be followed with caution. The consequences of these observations on limitation will be addressed below.
22 The next question in the interlocutory application is whether the three matters should be consolidated into one. While separate applications are appropriate before this Tribunal under the jurisdiction of the Retail Leases Act for separate and unrelated claims, fairness between the parties and the proper use of the jurisdiction does require that claims relating to the same alleged circumstances should be pursued in a single application.
23 The problem with these three claims is that it is not at all clear whether they relate to different circumstances. All three refer to the refurbishment and renovation of the Imperial Arcade and all three refer to representations in 1999 concerning proposed renovations. Yet all three seem to include allegations concerning conduct of the Lessor and representations at times after the commencement of the Lease. 035036 and 035053 both make claims relating to renovations said to be forthcoming at the time the Lease was entered into and both concern the possible building of a balcony; in 035053 the right to locate tables and chairs is alleged to have applied until the building of the balcony as part of the renovations. Both 035053 and 035066 include allegations concerning the issuing and withdrawal of relocation notices under the Lease. 035066 deals with renovations but these appear to be later and separate from the renovations alleged in the first two claims.
24 The applications as formulated leave the Respondent Lessor and indeed the Tribunal unable to determine how the claims arise within the Retail Leases Act and whether or not they are truly separate claims relating to different factual circumstances. They should be amended to correct this inadequacy with claims arising from the same factual circumstances consolidated in the same action.
25 It is also not possible to determine the extent to which the three claims include as an essential ingredient any representations said to have been made prior to the entering into the Lease. Given the Tribunal's view that, while there is not an issue estoppel concerning such representations the Lessee faces a serious problem in that regard, the Lessee must clarify what if any representation it says it is now, in light of that problem, relying on as ingredients of its claims.
26 Under most rules of judicial tribunals a party usually has one opportunity to amend without leave. Indeed the Respondent Lessor did not oppose that course, subject to reserving its rights if any on costs. In my view it is the right course in this case but the Applicant Lessee is at risk in not seeking legal advice in ensuring that its claims are properly formulated under the Act and having regard to the rulings and observations in this interlocutory application.
27 In these circumstances the Tribunal requires the Lessee to amend all three applications having regard to the following directions by the Tribunal:-
28 Amended applications are to be filed on or before 16 September 2003 and all matters to be listed for directions on 18 September 2003 at 12 noon.
(a) The Applicant is to have regard to the finding of the Tribunal in 025117 in basing any further claim on an allegation that the Lessor made a representation or the parties entered into an agreement prior to the Lease, relied on in entering into the Lease, other than as specified in the Lease.
(b) All claims relating to the same renovation or refurbishment of the Imperial Arcade including claims referring to relocation proposals in relation to that renovation and claims concerning approval for a balcony and the location of tables and chairs as part of that renovation are to be included in a single claim; only where renovation proposals are different both as to the time at which they are to occur and the nature of the renovation, may they be the subject of separate claims.
(c) The Applicant Lessee is to note the possible application of s.71(2) by way of limitation of its right to claim insofar as the obligation or liability alleged as the basis of the claim constitutes the entering into the Lease or matters arising prior thereto.
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