Survivors of Child Abuse Supporters of Survivors v Baron

[2001] NSWADT 51

CITATION:	Survivors of Child Abuse - Supporters of Survivors -v- Baron [2001] NSWADT 51
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Survivors of Child Abuse - Supporters of Survivors RESPONDENT Ken Baron
FILE NUMBER:	015009
HEARING DATES:	23/02/2001
SUBMISSIONS CLOSED:	02/23/2001
DATE OF DECISION:	02/23/2001
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Claim for surrender of possession of premises - Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT E Rolet in person RESPONDENT No appearance
ORDERS:	1. Mr Ken Baron, the respondent, grant access forthwith to Mr Eddie Rolet and Ms Debbie Fenn, to the premises 89 Campbell Street, Narooma, to enable Mr Rolet and Ms Fenn to remove from the premises all items in the nature of moveables and/or tenants fixtures belonging to them or to the organisation known as Survivors of Child Abuse-Supporters of Survivors (SCA-SOS), provided that in such removal Mr Rolet and Ms Fenn do not do any damage to the premises; 2. Access pursuant to order 1 be granted from 9.00 am through to 5.00 pm on 5 March 2001, from 9.00 am through to 5.00 pm on 6 March 2001 and from 9.00 am to 5.00 pm on 7 March 2001; 3. The applicant file and serve any affidavit upon which they would seek to rely, on or before 7 March 2001; 4. The respondent file and serve any affidavit in reply upon which he would seek to rely on or before 16 March 2001; 5. The application is listed for hearing before Mr Molloy at 12.30 or as soon as possible thereafter on Friday, 23 March 2001; 6. A copy of Mr Molloy's oral judgment in this matter be taken out and supplied by the Registrar to each of the parties as soon as possible.

Reasons for Decision - Delivered Ex Tempore

1 When this matter was called at 3 pm today, there was no appearance by or on behalf of Mr Ken Baron, who is the respondent to this application, and said to be the owner of the premises, 89 Campbell Street, Narooma. A Tribunal officer telephoned Mr Baron, at his work number, but he was not there and she was told that he would be returning at 3.30. I am satisfied that the respondent has had more than sufficient notice of this application coming before me today, at 3 pm, and I am satisfied that he is not before me today, and has not appeared today.

2 At the outset, I was concerned that this Tribunal may not have jurisdiction. For that reason, I invited Mr Rolet, one of the applicants, to give evidence on oath as to his occupation of the premises and as to the operations of those premises. He has told me from the bar table and on oath, that he and Ms Debbie Fenn, conduct a registered charity, called Survivors of Child Abuse/Supporters of Survivors, from the premises at 89 Campbell Street, Narooma, and from those premises, that charity derives income from the sale of lollies, drinks, CDs, books, soaps, chocolates and tickets or stickers for a disco conducted by the charity at the Narooma Sports and Leisure Centre.

3 He tells me that he and Ms Fenn have been in occupation of these premises since about April 2000, and that they have paid rent to Mr Baron. He tells me that they were locked out of the premises on or about 21 December 2000, and except for being allowed to remove certain drinks from the refrigerator, apparently owned by the charity, neither he nor Ms Fenn have been permitted back into the premises, and that Mr Baron has locked them out.

4 The Retail Leases Act, provides on my reading, that a retail shop means premises that are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1. As I read that definition, as I have relevantly set out, it does not require the use of the premises to be wholly used for one of the Schedule 1 purposes, but wholly or predominantly, for one of those businesses.

5 From the description given by Mr Rolet of the business conducted in the premises, I am satisfied on a prima facie basis, that there is jurisdiction in this Tribunal to deal with the application, but I note that on a final hearing, I shall need to be satisfied that there is in fact jurisdiction, and that the relevant sections and subsections of the Retail Leases Act, are in fact satisfied on a final basis.

6 I am informed by Mr Rolet, that notwithstanding the order that I made on 13 February 2001, the respondent has not permitted the applicant into the premises for the purposes specified in that order. I am told that there was an unsatisfactory conversation between Mr Rolet, and the respondent, and the respondent indicated to Mr Rolet, that the applicant could only enter the premises in accordance with the order that I made for a period of two hours only. There was no time limit specified in the orders, and obviously it goes without saying that in order to comply with the order that I made, 13 February 2001, the respondent must give access to the premises to the applicant for a reasonable time, in order for the applicant to comply with the terms of the order.

7 The respondent is not before this Tribunal today. Consequently, I am prepared to make a further order, and make it absolutely clear in that order, the times during which the respondent is to give access to the applicant. I would expect the parties to co-operate and work together, in complying with the terms of the orders that I am about to make.

8 I make the following orders:

1. Mr Ken Baron, the respondent, grant access forthwith to Mr Eddie Rolet, and Ms Debbie Fenn, to the premises 89 Campbell Street, Narooma, to enable Mr Rolet, and Ms Fenn to remove from the premises all items in the nature of moveables and/or tenants fixtures belonging to them or to the organisation known as Survivors of Child Abuse-Supporters of Survivors (SCA-SOS), provided that in such removal Mr Rolet and Ms Fenn do not do any damage to the premises.

2. Access pursuant to order 1 be granted from 9.00 am through to 5.00 pm on 5 March 2001 from 9.00 am through to 5.00 pm on 6 March 2001 and from 9.00 am to 5.00 pm on 7 March 2001.

3. Order that the applicant file and serve any affidavit upon which they would seek to rely, on or before 7 March 2001.

4. Order that the respondent file and serve any affidavit in reply upon which he would seek to rely on or before 16 March 2001.

5. The application is listed for hearing before me at 12.30 or as soon as possible thereafter on Friday, 23 March 2001.

6. I request that a copy of my oral judgment in this matter be taken out and supplied by the registrar to each of the parties as soon as possible.