Tringas v Quach

[2007] NSWADT 24

CITATION:	Tringas v Quach [2007] NSWADT 24
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Nick Tringas RESPONDENT Gu Quach
FILE NUMBER:	065138
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	16 November 2006
DATE OF DECISION:	23 January 2007
BEFORE:	Molloy GB - Judicial Member
CATCHWORDS:	Application for review of determination by a specialist retail valuer - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994 Retail Leases Amendment Act 2005
CASES CITED:	536 Swanston Street Pty Ltd v. Harbrut Pty Limited [1998] V ConvR 54-323 Bateman Television Limited v. Coleridge Finance Co Ltd [1969] NZLR 794 Goodlink Pty Limited v Sing [1999] NSWADT 71 Great Tastes of Australia v. Shorty Holdings [2006] NSWADT 253 Khera v. Law Society of NSW (LSD) [2005] NSW ADTAP 29 Kwon v. Kim [2005] NSWADT 167 Lauven Pty Ltd v. Venus Adult Shops Pty Limited [2006] NSWADT 359 Moweno Pty Limited v. Stratis Promotions Pty Limited [2003] NSWCA 376 Randi Wixs Pty Limited v. Pokana Pty Limited [2002] NSWADT 205. Thalassa Pty Limited v. Hawkesbury River Marina Pty Limited [2005] NSWADT 50 Wellington v. Norwich Union Life Insurance Society Limited [1990] V ConvR 54-387
REPRESENTATION:	APPLICANT P Cullen, Barrister RESPONDENT J Meuller, Solicitor
ORDERS:	1. Declare:; (i) The business Bait and Tackle conducted from the premises is, on the evidence, a business within those prescribed by Schedule 1.; (ii) That the leased premises are a Retail shop for the purpose of the Retail Leases Act 1994.; (iii) The Tribunal therefore has jurisdiction.; (iv) The valuation of Malcolm Gunning is a valuation of a specialist retail valuer within Section 31 of the Act.; 2. The Application is dismissed.; 3. The application for extension of time to seek an order for review pursuant to Section 32A is refused.; 4. Leave granted to either party to apply for an order for costs, any such application to be made within 28 days; absent such application there will be no order as to costs.

Issues

1 The Tribunal has been asked to determine three preliminary issues that have arisen arising out of or as a consequence of an application for the appointment of a Specialist Retail Valuer pursuant to Retail Leases Act 1994 Section 31.

2 The three preliminary issues are:

i. Does the business conducted from the premises fall within Schedule 1;
ii. Do Section 31 and Section 32A apply to the lease;

iii. If the sections do apply does the valuation as obtained by the Applicant satisfy those sections.

3 The Applicant is the proprietor and lessor of property 164 Bestic Street, Kyeemagh being the whole of the land in Certificate of Title Folio Identifier D/108404 (“the property”). The Applicant acquired the property from a Mr Sant on 14 October 2003 who had already leased the property to the Respondent pursuant to lease 7553873 (“the lease”).

4 The lease was for a term of five years commencing 18 December 2000, terminating 17 December 2005, with two options for renewal each in five year terms, the…