Townsend v Chief Executive, State Rail Authority

CITATION:	Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56
DIVISION:	Retail Leases
APPLICANT:	Jeffrey and Rhonda Townsend
RESPONDENT:	Chief Executive, State Rail Authority
FILE NUMBER:	995009
HEARING DATES:	06/22/1999
SUBMISSIONS CLOSED:	06/22/1999
DATE OF DECISION:	22 June 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Application for interim order
REPRESENTATION:	Applicant: J Chippindall of counsel instructed by Peter Adams & Co Solicitors Respondent: A Gelbart of counsel
ORDERS:	1. Application dismissed.

Delivered Ex Tempore

1 The applicants, Jeffrey and Rhonda Townsend, operate a kiosk at the Penrith Railway Station. Those premises have been leased to them by the respondent, the State Rail Authority. On 21 June 1999 the applicants commenced proceedings in the Tribunal against the State Rail Authority under the Retail Leases Act 1994 (the Act). At the same time they applied for interim relief in relation to action which the respondent proposes to take within the next few days, namely, to terminate the lease. The application for interim relief is the matter before the Tribunal today.

2 There is some doubt as to whether the principal application is properly before the Tribunal. Section 68 of the Act appears to require that the dispute must first be the subject of consideration by the Registrar of the Retail Leases Mediation Unit and that Registrar must provide a certificate in writing before a matter can be lodged in this Tribunal: s.68(1). But there is an exception and that exception applies where “the court is otherwise satisfied that mediation under [the relevant part] of the Act is unlikely to resolve the dispute”: s.68(1). There has been one attempt at mediation between the solicitors, which has been unsuccessful. But for the purposes of today’s decision I will not pursue the question of whether the procedure referred to in s.68 has been fulfilled. [See further para. 16 below].

3 The applicants were represented by Mr Chippindall of counsel and the respondent by Mr Gelbart of counsel. There was no sworn evidence, submissions being made from the bar table. There were a number of points of agreement as to the facts. The following background is based on those submissions and the assertions as to fact where there was no contest.

4 On 24 December 1998, purporting to act under the provisions of the lease, the respondent gave the applicants a six months notice, described as a notice of demolition, which upon expiry of the notice period would give rise to termination of the lease. The notice period expires in two days’ time. The applicants must then vacate their premises unless they are successful in obtaining a stay of operation of the notice. The respondent requires a clear site, as I understand it, in order to commence demolition works as part of upgrade work connected with preparation for the Olympic Games.

5 In their principal application, the applicants claim that the respondent failed to disclose the proposed redevelopment of the…