Tarleton & Peters Pty Ltd v EK Nominees Pty Ltd - [2010] NSWADT 248

CITATION: Tarleton & Peters Pty Ltd v EK Nominees Pty Ltd [2010] NSWADT 248

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Tarleton & Peters Pty Ltd
RESPONDENT
E K Nominees Pty Ltd

FILE NUMBER: 105129

HEARING DATES: 16 September 2010

SUBMISSIONS CLOSED: 16 September 2010

DATE OF DECISION:
20 October 2010

BEFORE: Fox R - Judicial Member

CATCHWORDS: Commencement of Lease, (s8) - Costs of Interim Application, (s88 1A).

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail leases Act 1994

CASES CITED: AT v Commissioner of Police [2010] NSWCA 131 Aspromonte Pty Ltd v Zagari [1999} NSWSC 83
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 284
Helau & Ors v Bong Bong Pty Ltd [2006] NSWADT 128 Jewell Bay Pty Ltd v DPT Operator Pty Ltd (No2) [2010] 204
Lau v Westfield Limited [2005] NSWADT 165 Randi Wix Pty Ltd v Pokana Pty Ltd (No 2)[2003] NSWADT 4 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd t/as Cafe Tiffany’s (No 4) [2005] NSWADTAP 32

REPRESENTATION:
APPLICANT
Mr Kidd, barrister
RESPONDENT
Ms Sharpe, barrister

ORDERS: 1 Urgent interim application for order restraining Respondent from entering into lease, or allowing Harris Farm Markets to sell meat denied
2 Applicant’s application for costs denied, no order for costs
3 Parties referred to Retail Tenancy Unit for mediation
4 Applicant to file with RTU and serve list of points for mediation by 30th September 2010
5 Respondent to file with RTU and serve list of points in reply by 14th October 2010
6 Further Directions 11th November 2010.

REASONS FOR DECISION

1 This matter came before me on 2^nd September 2010 as an urgent interim application for an order that I restrain the Respondent from entering into a lease with Harris Farm Market which would allow it to sell meat from premises in the shopping centre known as St Ives Shopping Village. The Applicant is the lessee of other premises within the village from which it has conducted a butchery for many years. Harris Farm Market previously conducted a supermarket from its occupancy, and has recently commenced a fitout of adjacent premises from which it appears to have proposed to sell meat products.

2 The Applicant, in the Application for Original Decision, as a combined retail tenancy and unconscionable conduct claim, claimed that its’ lease gave it the sole right to sell meat, and sought appropriate declarations, restraining order and damages.

3 On 2^nd September Mr Kidd conceded that if a lease had already been executed between the Respondent and Harris Farm Market then he could not press his application for a “stay”. That led to M/s Sharpe from the bar table indicating that a lease had been signed on 23^rd August, the day before the Applications before me had been filed. Mr Kidd then sought formal proof of that, and I adjourned the matter for further hearing (of the Application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWADT 248
Decision Date: 20 October 2010

CaseChat Overview and Summary

Tarleton & Peters Pty Ltd sought an interim order to restrain EK Nominees Pty Ltd from entering into a lease or allowing Harris Farm Markets to sell meat on the premises. The dispute arose from the applicant's concern that the respondent would proceed with the lease, affecting their existing agreement. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue was whether an interim order should be granted to prevent the respondent from proceeding with the lease or allowing Harris Farm Markets to sell meat. Additionally, the court considered the costs associated with the interim application under section 88(1A). The applicant argued for an urgent interim application due to the imminent commencement of the lease and the potential loss of business. The respondent contested the urgency and the basis for the application.

The Tribunal denied the applicant's request for an interim order, concluding that there was no urgency to prevent the lease from commencing. The Tribunal found that the applicant had not demonstrated a sufficient risk of irreparable harm or urgency to warrant an interim order. Regarding the costs, the Tribunal determined that no party should bear the costs of the interim application. The Tribunal referred the matter to the Retail Tenancy Unit for mediation and set deadlines for the parties to file and serve their lists of points for mediation. The final orders included a denial of the interim application and costs, a referral to mediation, and set dates for the submission of mediation points.

Orders

Orders of the court

1 Urgent interim application for order restraining Respondent from entering into lease, or allowing Harris Farm Markets to sell meat denied

2 Applicant’s application for costs denied, no order for costs

3 Parties referred to Retail Tenancy Unit for mediation

4 Applicant to file with RTU and serve list of points for mediation by 30th September 2010

5 Respondent to file with RTU and serve list of points in reply by 14th October 2010

6 Further Directions 11th November 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tarleton & Peters Pty Ltd v EK Nominees Pty Ltd [2010] NSWADT 248
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Tarleton & Peters Pty Ltd RESPONDENT E K Nominees Pty Ltd
FILE NUMBER:	105129
HEARING DATES:	16 September 2010
SUBMISSIONS CLOSED:	16 September 2010
DATE OF DECISION:	20 October 2010
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Commencement of Lease, (s8) - Costs of Interim Application, (s88 1A).
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail leases Act 1994
CASES CITED:	AT v Commissioner of Police [2010] NSWCA 131 Aspromonte Pty Ltd v Zagari [1999} NSWSC 83 Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 284 Helau & Ors v Bong Bong Pty Ltd [2006] NSWADT 128 Jewell Bay Pty Ltd v DPT Operator Pty Ltd (No2) [2010] 204 Lau v Westfield Limited [2005] NSWADT 165 Randi Wix Pty Ltd v Pokana Pty Ltd (No 2)[2003] NSWADT 4 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd t/as Cafe Tiffany’s (No 4) [2005] NSWADTAP 32
REPRESENTATION:	APPLICANT Mr Kidd, barrister RESPONDENT Ms Sharpe, barrister
ORDERS:	1 Urgent interim application for order restraining Respondent from entering into lease, or allowing Harris Farm Markets to sell meat denied 2 Applicant’s application for costs denied, no order for costs 3 Parties referred to Retail Tenancy Unit for mediation 4 Applicant to file with RTU and serve list of points for mediation by 30th September 2010 5 Respondent to file with RTU and serve list of points in reply by 14th October 2010 6 Further Directions 11th November 2010.