Ticehurst v Cross - [2005] NSWSC 574

Reported Decision:
(2006) NSW ConvR 56-136

New South Wales

Supreme Court

CITATION:
Ticehurst v Cross [2005] NSWSC 574

HEARING DATE(S): 14 June 2005

JUDGMENT DATE :

17 June 2005

JURISDICTION:
Common Law Division
Possession List

JUDGMENT OF:
Studdert J

DECISION:
The notice of motion is dismissed. Costs of the motion are to be costs in the cause.

LEGISLATION CITED:
Retail Leases Act, ss 63, 68, 75

CASES CITED:
Oriental Carpet Department Store v Supacenta Pty Limited [2003] NSWSC 783

PARTIES:
Maurice Patrick Ticehurst (1st Plaintiff)
Beverley Anne Ticehurst (2nd Plaintiff)
David Michael Cross (Defendant)

FILE NUMBER(S):
SC 14106/04

COUNSEL:
P. Sibtain (Plaintiff)
K. Welshman (Defendant)

SOLICITORS:
Cole & Butler (Plaintiff)
Bamford Marcellos O'Connor (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

STUDDERT J

Friday 17 June 2005

14106/04 MAURICE PATRICK TICEHURST & ANOR v DAVID MICHAEL CROSS
JUDGMENT

1 HIS HONOUR: The applicant, David Michael Cross, is the defendant in proceedings that have been brought against him in this court by the plaintiff, Maurice Patrick Ticehurst and Beverley Anne Ticehurst. The defendant’s application to which this judgment is directed is one of two applications pending in this court. The other application is an application by the plaintiffs for the assessment of damages. In the circumstances, I propose to refer to David Michael Cross in this judgment as the defendant and to Maurice Patrick Ticehurst and Beverley Anne Ticehurst as the plaintiffs.

2 By his notice of motion the defendant seeks the following orders:

Retail Leases Act

3. The Plaintiff to pay the Defendant’s costs of this motion.

4. Any other order that this Honourable Court deems fit.”

3 Section 68 of the Retail Leases Act provides as follows:

“ 68 Disputes and other matters must be submitted to mediation before proceedings can be taken

A retail tenancy dispute

(2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter.

(3) This section does not apply to proceedings before a court for an order in the nature…

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: [2005] NSWSC 574
Decision Date: 17 June 2005

CaseChat Overview and Summary

In Ticehurst v Cross, the defendant, David Michael Cross, sought to have the plaintiffs' claim struck out or, alternatively, for the proceedings to be transferred to the Administrative Decisions Tribunal. The plaintiffs, Maurice Patrick Ticehurst and Beverley Anne Ticehurst, had leased land to the defendant for a period of five years and were now seeking damages for arrears of rent and damages to fixtures and fittings. The legal issues before the court were whether the claim constituted a retail tenancy dispute and, if so, whether mediation was likely to resolve the dispute and whether the proceedings should be transferred to the Administrative Decisions Tribunal. The court found that the claim did indeed constitute a retail tenancy dispute under the Retail Leases Act and that mediation was unlikely to resolve the dispute. Given the progress of the case and the delay in bringing the application, the court concluded that the interests of justice required the matter to remain in the Supreme Court. The notice of motion was dismissed, and the costs of the motion were to be costs in the cause.

Orders