Trust Company of Australia Limited v Skiwing Pty Ltd (RLD)

[2005] NSWADTAP 52

Appeal Panel - Internal

CITATION:	Trust Company of Australia Limited v Skiwing Pty Ltd (RLD) [2005] NSWADTAP 52 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Trust Company of Australia Limited RESPONDENT Skiwing Pty Ltd
FILE NUMBER:	059063
HEARING DATES:	28/09/2005
SUBMISSIONS CLOSED:	09/28/2005
DATE OF DECISION:	10/31/2005
DECISION UNDER APPEAL:	Skiwing Pty Ltd v Trust Company of Australia Limited [2005] NSWADT 188
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Interim order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	045078, 055048, 055049
DATE OF DECISION UNDER APPEAL:	08/10/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Skiwing Pty Ltd v Trust Company of Australia Limited [2005] NSWADT 188 Skiwing Pty Ltd v Trust Company of Australia Limited (RLD) [2005] NSWADTAP 10 Trust Company of Australia Limited (Stockland Property Management Pty Ltd) v Skiwing Pty Ltd trading as Café Tiffany’s (RLD) [2004] NSWADTAP 33
REPRESENTATION:	APPELLANT M Allars, barrister RESPONDENT Z Stojanoski, agent
ORDERS:	Orders made 28/09/2005; 1. Execution of the orders made by the Tribunal on 10 August 2005 is stayed pending the disposition of the two appeals that have been lodged against those orders. ; 2. The costs of this application are reserved.

1 On 28 September 2005, I delivered an ex tempore decision granting an application by the Respondent Lessor in these proceedings, Trust Company of Australia (trading as Stockland Property Management Ltd) (hereafter ‘Stockland’), for an urgent interim order. On 10 October 2005, the Applicant Lessee, Skiwing Pty Ltd (hereafter ‘Skiwing’), applied under s 89 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) for written reasons for my decision. Those reasons are set out below.

The nature of this application

2 In this matter, appeals were brought by Skiwing (on 23 August 2005) and Stockland (on 16 September 2005) against a decision of the Tribunal, constituted by Mr Donald, Judicial Member, in Skiwing Pty Ltd v Trust Company of Australia Limited [2005] NSWADT 188. This decision was delivered on 10 August 2005.

3 The lease between the parties (‘the Lease’) is governed by the Retail Leases Act 1994 (‘the RL Act’).

4 On 16 September 2005, Stockland applied also for an urgent interlocutory order staying the operation of the Tribunal’s decision. Although the appeals are to be heard by an Appeal Panel comprising three Members, I sat alone to hear this application, pursuant to s 24A of the ADT Act.

5 In its decision of 10 August 2005, the Tribunal granted a declaration and made various orders implementing an earlier Appeal Panel decision (Skiwing Pty Ltd v Trust Company of Australia Limited (RLD) [2005] NSWADTAP 10) specifying how a dispute between the parties regarding Skiwing’s contributions to Stockland’s outgoings under the Lease should be resolved. Amongst other things, the Tribunal ordered that Stockland should prepare a schedule of Skiwing’s contributions to its outgoings, defined in accordance with various rulings set out in the Tribunal’s decision, and should either reimburse Skiwing for amounts overpaid on account of contributions or issue a notice requiring payment of any shortfall.

6 The ground on which Skiwing appealed against this decision was that the Tribunal had failed to make any award to it on account of interest under s 72A of the RL Act.

7 In its notice of appeal, Stockland alleged that the Tribunal had erred in law in a number of ways in interpreting the prior decision of the Appeal Panel and applying relevant provisions of the RL Act.

The grounds for granting a stay

8 In acceding to Stockland’s application for an urgent interim order, I take account of two well-established considerations governing the grant of orders staying the execution of a decision pending appeal. These are (1) whether or not the appeal has some merit and (2) whether or not the ‘balance of hardship’ favours the granting of a stay.

9 With regard to the first of these matters, I attach significant weight to the fact that both parties have appealed. I think in fact that some element of contradiction arises when a party (in this case, Skiwing) both appeals against a decision and opposes an application for the decision to be stayed. Having regard to this feature of the case and to the substantive matters raised by both parties in their notices of appeal, I consider that there is a significant possibility that the orders under appeal might at least be varied by the Appeal Panel. Without in any sense prejudging the questions raised, I believe that the appeals cannot be described as being without merit.

10 On the issue of ‘balance of hardship’, two factors are of particular importance.

11 First, if the Tribunal’s order for payment of contributions by Skiwing or reimbursement by Stockland is enforced before determination of the appeals, a payment made pursuant to the order may subsequently have to be retrieved by the paying party in circumstances where it is not apparent to me that appropriate security is available to ensure that repayment. I am aware that in July 2004, pending the disposition of an appeal in a matter between the same parties, an order of the Appeal Panel provided that a stay of execution of the decision under appeal should cease when Mr Zoran Stojanoski, the owner and director of Skiwing, and his wife had provided specified security for repayment of any amount paid by Stockland to Skiwing pursuant to the decision: see Trust Company of Australia Limited (Stockland Property Management Pty Ltd) v Skiwing Pty Ltd trading as Café Tiffany’s (RLD) [2004] NSWADTAP 33. But there is no evidence before me that that security is still available or should be deemed sufficient for present purposes. For that reason, I think Stockland has made good its argument that it might well be prejudiced if it made a payment to Skiwing pursuant to the Tribunal’s decision, but was then held entitled to retrieve this payment following the determination of the appeals.

12 Secondly, although the date first scheduled for hearing the appeals has had to be vacated in unforeseen circumstances, it is highly likely that they will be heard in the not too distant future. This is not a case where a respondent to an appeal who alleges hardship through being denied the benefit of the order under appeal is destined to suffer that hardship for an excessively long period of time.

The orders to be made

13 By virtue of this range of circumstances, some of which are rather unusual, it is appropriate that the status quo be maintained: that is to say, that execution of the orders made by the Tribunal on 10 August 2005 should be stayed pending the disposition of the two appeals that have been lodged against those orders.

14 The costs of this application are reserved.

01/11/2005	-	To correct date of ex tempore decision - Paragraph(s) 1
01/11/2005	-	To correct date of ex tempore decision - Paragraph(s) 1