Tu v Ch Real Estate Pty Ltd t/as Raine and Horne Campbelltown

[2015] NSWSC 1728

Supreme Court

New South Wales

Medium Neutral Citation:

Tu v CH Real Estate Pty Ltd t/as Raine & Horne Campbelltown [2015] NSWSC 1728

Hearing dates:

5 November 2015

Date of orders:

23 November 2015

Decision date:

23 November 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) An order under s 140(2) of the Civil Procedure Act 2005 (NSW) transferring to this Court proceedings currently before the District Court of NSW being:

 

(a) Case number 2014/164670 including proceedings on the First Cross-Claim in those District Court proceedings; and

 

(b) Proceedings originally commenced in the NSW Civil and Administrative Tribunal and designated as file number COM 14/15094 and transferred to the District Court on 12 June 2014 and given District Court case number 2014/174830.

 

(2) Direct that the two transferred proceedings be heard together with evidence in each being evidence in the other.

 (3) Dismiss the Cross-Summons.

Catchwords:

LEASES – retail leases – New South Wales Civil and Administrative Tribunal – jurisdiction of courts to hear disputes concerning retail leases – dispute concerning existence of lease – proceedings commenced in Tribunal transferred to District Court – whether District Court has jurisdiction – jurisdiction of Supreme Court – whether proceedings should be transferred to Supreme Court – whether proceedings should thereafter be transferred to the Tribunal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Retail Leases Act 1994 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Gekeva Pty Ltd v AGF Pty Ltd [2000] NSWSC 1199
General Steel Industries Inc v Commisioner for Railways (NSW) (1964) 112 CLR 125
Pascoe v Holyoake [2006] NSWSC 64
State of NSW v Kable [2013] HCA 26; (2013) 252 CLR 118

Category:

Procedural and other rulings

Parties:

Margaret Sze Tu (First Plaintiff)
Shiu How Sze Tu (Second Plaintiff)
Shiu Shing Sze Tu (Third Plaintiff)
Helen Sze Tu (Fourth Plaintiff)
CH Real Estate Pty Ltd t/as Raine & Horne Campbelltown (First Defendant)
JAM Studios Pty Ltd (Second Defendant /Cross-Claimant)

Representation:

Counsel:
R P V Carey (Plaintiffs)
R O’Connor (First Defendant)
N Potts (Second Defendant/Cross-Claimant)

  Solicitors:
Derham Houston Lawyers (Plaintiffs)
Gadens Lawyers (First Defendant)
Safe Harbour Lawyers (Second Defendant/Cross-Claimant)

File Number(s):

2015/219254

Judgment

1. The Plaintiffs by Summons seek to have two sets of proceedings in the District Court removed into this Court. The Second Defendant, JAM Studios Pty Ltd, (JAM) seeks an order under s 23 of the Supreme Court Act 1970 (NSW) that proceedings now in the District Court commenced in the NSW Civil and Administrative Tribunal be transferred back to and continued in the Tribunal. I shall refer to those latter proceedings as the Tribunal Proceedings.

2. Both proceedings concern the occupancy by JAM of shop 5/42-44 Queen Street, Campbelltown. Those premises are owned by the Plaintiffs.

3. During the early part of 2013 there were negotiations between JAM and CH Real Estate Pty Ltd, the Plaintiffs’ letting agent, in respect of a proposed lease of the premises by JAM. It is common ground that no written lease between the parties was ever executed. However, there was an exchange of emails between JAM and CH Real Estate on 3 and 7 July 2013.

4. On about 11 July 2013 CH Real Estate forwarded to JAM a lease advice sheet. It was described by CH Real Estate in the covering email as “Heads of Agreement” and it was said to confirm the agreed terms for the lease of the premises. The email asked that if everything was in order the person negotiating for JAM should sign and return the document to the agent’s office and organise the transfer of the one month bond and rental into the agent’s bank account. JAM says that it executed the Heads of Agreement on 11 July 2013 and returned it to the agent.

5. On 14 July 2013 the agent forwarded a copy of the lease advice sheet to JAM’s solicitor. The covering email said:

The landlords (sic) solicitor is in the process of preparing lease documentation for your clients (sic) review and execution.

6. Although the lease commencement date was stipulated as 1 August 2013 JAM paid the bond and a month’s rent to the agent on 11 July 2013, provided a certificate of insurance as had been requested, and was given the keys and access to the premises. JAM asserts that this was for the purpose of a fit out. That fit out commenced on 26 July 2013.

7. On 29 July 2013 the agent sent an email to JAM informing them that they had access only to allow JAM to store items on the premises, and that JAM was not to commence a fit out until the lease document was executed. Nevertheless, the fit out was completed by 4 August 2013 and JAM commenced trading its music tuition business on or about 5 August 2013.

8. Further negotiations continued in subsequent months but they finally broke down in about February 2014. On 26 February 2014 the agent sent JAM a notice to vacate which said this:

RE:   NOTICE TO VACATE

PREMISES: SHOP 5/ 42-44 QUEEN STREET, CAMPBELLTOWN

Further to our meeting on Thursday 20th February, 2014 the Lessor has instructed our office to terminate your occupation by providing you with thirty (30) days' notice to vacate the premises effective from the date of this letter.

You are in breach of the followings:

1) You would be aware that rental and any other charges are due on the First of each calendar month and are to be maintained one (1) month in advance. As at today's date your account is only paid to 31st January, 2014. This amount was received today, 26th February, 2014. The February rental remains unpaid. This leaves current arrears totalling $4,125.00.

2) In addition to date a D.A has not been lodged and approved by council which is the responsibility of the Lessee's to obtain. You have commenced fit-out and trading prior to this compulsory process.

You are required to remove all your stock, equipment, fixtures, fittings and signage and make good any damage caused during the removal process or other damage caused during your occupancy. The premises are to be left clean and tidy with all rubbish removed.

You will be contacted close to the final date of your occupation to arrange an inspection of the progress made.

If you wish to discuss this matter further please do not hesitate to contact me.

9. On 17 March 2014 JAM made application to the Tribunal seeking the following orders against the Plaintiff:

Injunction to prevent eviction from the premises

Lessor to allow for abatement of rent

Lessor to compensate lessee for damages & costs

These were the Tribunal Proceedings.

10. Two applications for an interim injunction by JAM were dismissed on 21 and 28 March 2014.

11. On 2 June 2014 the Plaintiffs filed a Statement of Claim in the District Court against CH Real Estate claiming damages for an alleged breach of the management agency agreement made between the Plaintiffs and CH Real Estate (the District Court Proceedings). The breach was said to be permitting JAM to enter the premises as a tenant at will for the limited purpose of storing items when the management agency agreement did not authorise the agent to enter into and sign leases on behalf of the Plaintiffs.

12. Paragraphs 20 and 21 of the Statement of Claim made clear what the proceedings were about. Paragraph 20 noted the filing of the Tribunal Proceedings by JAM in which it was asserted that a lease had been entered into between JAM and the Plaintiffs. Paragraph 21 then relevantly said:

To the extent that any part of the claims made by the Prospective Tenant in the tribunal proceedings are successful as against the Plaintiffs, then:

(a)   If the existence of a lease in respect of the premises is established, the defendant acted in breach of clause 7 of the agreement and

(b)   If it is established that the Plaintiffs are in breach of any term of a lease held by the Prospective Tenant in respect of the premises, then the defendant by its conduct acted in breach of clause 7 of the Agreement in agreeing to any terms said to have been breached.

13. On the same day the Statement of Claim was filed the Plaintiffs filed a Notice of Motion in the District Court seeking orders that the Tribunal Proceedings be transferred to the District Court.

14. On the same day again the Plaintiffs wrote to the Tribunal asking for an adjournment of the Tribunal Proceedings which were listed on 13 June 2014 to allow the Notice of Motion in the District Court to be heard. On 6 June 2014 the Tribunal refused that application on the basis, principally, that the matter in the District Court involved different parties from the Tribunal Proceedings.

15. On 10 June 2014 the Plaintiffs filed an Amended Statement of Claim in the District Court which joined JAM as the Second Defendant. The claim made against JAM (contained in paragraphs 21A – 21G) alleged a breach of an agreement between the Plaintiffs and JAM to allow JAM into the premises for the limited purpose of storing items. The breach of that agreement was said to be the fit out that had been constructed by JAM as well as the failure of JAM to vacate the premises in compliance with the Notice to Vacate of 26 February 2014 (wrongly said in paragraph 21F to be 26 February 2013). Damages were claimed for the cost of restoring the premises to their former state and for ongoing loss of market rental whilst JAM remained in occupation.

16. The Notice of Motion to transfer the proceedings from the Tribunal was refused by her Honour Judge Balla on 11 June 2014. That resulted in the Plaintiffs approaching this Court by Summons for the removal of the Tribunal Proceedings to the District Court to be heard jointly with the District Court Proceedings which the Plaintiffs had commenced. That Summons came before Harrison J as duty judge. His Honour was not informed about the provisions of the Retail Leases Act 1994 (NSW) nor the decision of Rein AJ in Pascoe v Holyoake [2006] NSWSC 64.

17. The basis for this Court’s power to make the order was said to be s 23 of the Supreme Court Act. The basis for the exercise of that jurisdiction was said to be the possibility of conflicting findings in the Tribunal Proceedings and the District Court Proceedings. JAM opposed the orders principally, it would seem from Harrison J’s judgment, on the basis that the Tribunal Proceedings were due to be heard the following Friday and JAM was ready to proceed with that hearing. There was no opposition on jurisdictional grounds.

18. His Honour determined:

On balance, it seems to me that the prospects of dissimilar decisions in competing tribunals leads to the preferable, although by no means inevitable, conclusion the proceedings in the tribunal should be removed for hearing in the District Court.

19. His Honour ordered the Plaintiffs to pay the costs.

20. On 8 July 2014 JAM filed and served a Defence to the Amended Statement of Claim in the District Court Proceedings. On 29 July 2014 JAM filed and served a Cross-Claim in those proceedings seeking relief against the Plaintiffs in the nature of:

(a)   A declaration as to the existence of a retail lease between the Plaintiffs as lessors and JAM as tenant;

(b)   An injunction restraining the Plaintiffs from evicting JAM from the premises; and

(c)   Abatement of rent and damages for breach of the lease.

21. The Plaintiffs’ present solicitors commenced to act in April 2015. Those solicitors then examined the procedural history of the proceedings and formed the opinion that the District Court did not have jurisdiction to deal with the relief sought by JAM in its Cross-Claim. The Plaintiffs also desired to amend again the District Court Proceedings to claim possession of the premises. They recognised that the District Court did not have jurisdiction in that regard and they proposed that both the proceedings should be transferred to this Court.

22. The solicitors acting for JAM wrote indicating that their client did not consent to the filing of the Further Amended Statement of Claim. Nothing was said about the suggested transfer of the proceedings to this Court. However, it is with that procedural background that the present Summons and Cross-Summons fall for determination.

Legislation

23. Determination of the present jurisdictional dispute turns chiefly on a proper construction of the relevant provisions of the Retail Leases Act. Those provisions are these:

6A   Application of Act to short-term leases

(1)   Generally, Act not to apply to short-term leases

Subject to subsection (2), this Act does not apply to a lease of a retail shop for a term of less than 6 months without any right for the lessee to extend the lease (whether by means of an option to extend or renew the lease or otherwise).

….

63   Interpretation

(1)   In this Part:

court means a court, tribunal or other body or person authorised by law, or by consent or agreement of parties, to decide or resolve any issue that is in dispute between parties, and includes an arbitrator.

party or former party to a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.

retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates, and (without limiting the generality of the foregoing) includes a dispute about a security bond, but does not include a dispute of the kind referred to in section 19 (1) (b) or 31 (1) (b) as to the rent payable under a retail shop lease (where the rent is to be current market rent for the shop). (emphasis added)

…

70 Definitions

In this Division:

retail tenancy claim means any of the following:

(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:

(i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund),

(ii) a claim for relief from payment of a specified sum of money,

(iii) a claim for the doing of specified work or the provision of specified services,

(iv) a claim for the surrender of possession of specified premises,

(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,

(vi) a claim for relief against forfeiture,

(vii) a claim regarding the rectification of the lease,

(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,

(ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease,

(x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E,

(xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond,

…

71 Lodging of retail tenancy claims with Tribunal

(1) A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim. (emphasis added)

…

75 Removal of court proceedings to the Tribunal

(1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that:

(a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and

(b) the interests of justice do not require that the matter be dealt with by the court.

(2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court.

(3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned.

(4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so.

…

(7) This section applies despite anything in Schedule 4 to the Civil and Administrative Tribunal Act 2013 concerning the removal of court proceedings to the Tribunal.

76 Jurisdictional overlap

(1) If a retail tenancy claim or an unconscionable conduct claim has been lodged with the Tribunal under this Part and at the time it was lodged no issue arising under the claim was the subject of a dispute in civil proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue in civil proceedings, unless:

(a) the claim lodged with the Tribunal, or the part of that claim to which the issue relates, is withdrawn or is dismissed for want of jurisdiction, or

(b) a court of record has, on a judicial review, quashed or declared invalid an order, determination or ruling of the Tribunal made in respect of the claim on the ground that the Tribunal had no jurisdiction to hear and determine the issue.

(2) If a retail tenancy claim or an unconscionable conduct claim has been lodged with the Tribunal under this Part and at the time it was lodged an issue arising under the claim was the subject of a dispute in civil proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue, unless:

(a) those proceedings, or the part of the proceedings relating to the issue, are or is transferred to the Tribunal by the court concerned, or

(b) those proceedings, or the part of the proceedings relating to the issue, are or is withdrawn or dismissed by the court, or by another court on appeal in those proceedings, for want of jurisdiction or without deciding the issue on its merits, or

(c) a court of record has, on a judicial review, quashed or declared invalid those proceedings or that part of those proceedings or any order, judgment or decision made in those proceedings in relation to the issue, on the ground that the first-mentioned court had no jurisdiction to hear and determine the issue.

…

(5) This section applies despite anything in Schedule 4 to the Civil and Administrative Tribunal Act 2013 concerning jurisdictional overlap between courts and the Tribunal.

24. The definition of “retail shop lease or lease” is as follows:

3 Definitions

…

retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:

(a) whether or not the right is a right of exclusive occupation, and

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing.

Note. Sections 6, 6A and 84B limit the retail shop leases to which this Act applies.

25. Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) which deals with the Consumer and Commercial Division is also relevant. Clause 3 allocates matters under the Retail Leases Act to the Consumer and Commercial Division. Other relevant provisions are these:

5 Relationship between Tribunal and courts and other bodies in connection with Division functions

(1)   Meaning of “court”

For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that:

(a)   is empowered under any other Act, or

(b)   by consent of, or agreement between, 2 or more persons has authority,

to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.

(2)   However, court does not, for the purposes of this clause, include:

(a)   a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or

(b) the Fair Trading Administration Corporation constituted under Part 7 of the Home Building Act 1989, or

(c)   the Ombudsman, or

(d)   any person exercising the functions of an ombudsman under any law of the Commonwealth, or

(e) any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.

(3)   Effect of application to Tribunal or court

If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4)   Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5)   Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6)   For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.

(7)   Effect of pending court proceedings on Tribunal

If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8)   Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

(9)   Evidence from court proceedings

In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.

(10)   Clause prevails over other law

This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.

6 Transfer of proceedings to courts or to other tribunals

(1)   If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are:

(a)   to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and

(b)   to continue before that court as if the proceedings had been instituted there.

(2)   If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function:

(a) to be transferred to the Tribunal in accordance with the procedural rules (if any), and

(b) to continue before the Tribunal as if the proceedings had been instituted in the Tribunal.

26. I note in passing that ss 75(7) and 76(5) of the Retail Leases Act appear to vie for dominance with clause 5(10) of Schedule 4 of the Civil and Administrative Tribunal Act although whether there might be inconsistency between them is difficult to say.

Submissions

27. Three preliminary matters should be noted. First, all the parties were agreed that the ideal position would be that all of the issues between the three parties should be determined in the one place. Secondly, the parties were all agreed that the District Court lacked jurisdiction to deal with some aspects of the matter being the claim for possession by the Plaintiffs and the declaration and injunction sought by JAM. Thirdly, JAM abandoned prayer 1 in its Cross-Summons seeking that the order made by Harrison J on 12 June 2014 was void ab initio.

28. The Plaintiffs argued that where the dispute in the first instance is whether or not there is a lease, the Tribunal has no jurisdiction to determine the matter because its jurisdiction is confined to retail tenancy disputes which concern a retail shop lease or former lease. Here, the dispute is whether there is such a lease.

29. The Plaintiffs submitted, alternatively, that s 76(1) ceased to have any application in respect of the Tribunal Proceedings upon their transfer to the District Court. That is because s 76(1) assumes that proceedings involving a retail tenancy dispute remain pending before the Tribunal. The terms “has been” and “lodged” presume an action begun in the Tribunal that is continuing there. Further, the proceedings have been withdrawn. Such withdrawal is demonstrated, the Plaintiffs said, by the failure to appeal against Harrison J’s order or to apply to set it aside and by the lodgement of a Cross-Claim in the District Court Proceedings seeking similar orders to those sought in the Tribunal.

30. JAM submitted that this Court had no jurisdiction to transfer the Tribunal Proceedings to the District Court, and relied on what Rein AJ (as his Honour then was) said in Pascoe v Holyoake at [22]. The order transferring the proceedings should not have been made and an order should now be made by this Court under either s 23 of the Supreme Court Act or under this Court’s inherent jurisdiction to transfer the proceedings back to the Tribunal. JAM submitted that the effect of ss 75 and 76 or the Retail Leases Act was that neither this Court nor the District Court had jurisdiction to hear the Tribunal Proceedings. Section 76 was the relevant provision because JAM had first commenced proceedings in the Tribunal.

31. CH Real Estate submitted that the jurisdiction given to the Tribunal under s 75 of the Retail Leases Act was not an exclusive jurisdiction and that this Court has jurisdiction to hear the dispute. All of the issues between the parties should be determined in this Court.

Consideration

32. In my opinion an order should be made transferring both proceedings that are now in the District Court into this Court but that no order should be made thereafter transferring the Tribunal Proceedings to the Tribunal. Nor should any order be made, assuming power to do so, that the Tribunal proceedings be transferred directly to the Tribunal. My reasons follow.

33. The principal issue between the Plaintiffs and JAM is the existence or otherwise of a retail lease of the premises. That is made clear by the commencement of the Tribunal proceedings, the Amended Statement of Claim filed in the District Court particularly paragraphs 21A to 21F, the terms of the Cross-Claim filed by JAM against the Plaintiffs in the District Court particularly the first prayer for relief and paragraphs 7 to 11 and 13 to 16 thereof, and the terms of the proposed Further Amended Statement of Claim particularly paragraphs 8A to 9C. JAM has consistently taken the position that it was in possession of the premises under what would have to be regarded as an equitable lease but the Plaintiffs have consistently maintained that JAM was allowed into occupation of the premises for the purpose of storage of their goods only because no lease had come into existence. In that way the present proceedings differ from the position in Pascoe v Holyoake where the existence of the lease was not in issue although whether the lessor was bound by the lease was in issue – see at [2] and [5].

34. What JAM lodged with the Tribunal on 17 March 2014 was purportedly a retail tenancy claim. However, under s 70 that needed to be a claim in connection with the liability or obligation with which a retail tenancy dispute is concerned. A retail tenancy dispute in s 63 was a dispute concerning the liabilities or obligations of a party to a retail shop lease being liabilities or obligations which arose under the lease or which arose in connection with the use or occupation of the retail shop to which the lease relates. It may be observed that a retail tenancy dispute and, accordingly, a retail tenancy claim must concern liabilities or obligations concerned with a retail shop lease.

35. Under s 3 of the Act a retail shop lease was “any agreement” under which a person granted or agreed to grant to another person for value a right of occupation of premises for the purpose of the use of those premises as a retail shop. While s 3 made it clear that the agreement could be express or implied and it was not necessary for it to be in writing, the section was posited on the basis that there was an agreement in that regard. Nothing in ss 3, 63 or 70 extended to the situation where a party alleged that there was such a lease although that lease was disputed by the other party. It would have been easy for the Act to have included in either of the definitions of “retail tenancy dispute” or “retail tenancy claim” a reference to a claim or dispute that included an assertion of the existence of an agreement although such assertion was denied. I am strengthened in that view by the fact that, notwithstanding s 75(2), exclusive jurisdiction was not given to the Tribunal to determine all matters involving disputes relating to retail leases – see ss 6, 6A(1), 75(1),(4), 76(1)(a), (2), 76A(1).

36. In those circumstances, I do not consider that the Tribunal has the jurisdiction in the first instance to determine whether or not a retail shop lease existed.

37. Secondly, at the present time there are no proceedings before the Tribunal. The proceedings that were before the Tribunal were transferred by an order of this Court to the District Court. There was no opposition to that transfer on jurisdictional grounds. Since the order was made no application has been made until the Cross-Summons was filed in the present proceedings on 10 September 2015 either to set the order aside or to appeal against the making of the order. The order, being an order of this Court, cannot be said to be void and I have already noted that JAM abandoned prayer 1 in its Cross-Summons suggesting that it was void.

38. In State of NSW v Kable [2013] HCA 26; (2013) 252 CLR 118 the judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:

[32]   It is now firmly established by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long-established stream of authority. Nor was it submitted that these principles did not apply equally to the judicial orders of a State Supreme Court. …

39. A similar view was reached by Gageler J at [57]–[59].

40. The result is that there are not any proceedings before the Tribunal and the dispute is currently before the District Court. The parties accept that the District Court will not have jurisdiction to grant some of the relief sought and to be sought in the proceedings before it. There can be no doubt, therefore, that in the first instance the proceedings must be transferred to this Court pursuant to s 140 Civil Procedure Act 2005 (NSW). The question is whether this Court is obliged then to transfer the dispute between the Plaintiffs and JAM to the Tribunal because this Court has no jurisdiction over the dispute.

41. A similar matter came before Hidden J in Gekeva Pty Ltd v AGF Pty Ltd [2000] NSWSC 1199. The dispute in that case concerned whether there was a retail lease within the meaning of the Retail Leases Act. No written lease had been executed although the defendant had been let into occupation for the payment of an amount of rent. The Plaintiff sought summary judgment for possession and the Defendant sought an order under s 75(1) of the Act for the proceedings to be transferred to the Tribunal.

42. Justice Hidden was not satisfied on the evidence that the Plaintiff was entitled to summary judgment for possession by application of the principles in General Steel Industries Inc v Commisioner for Railways (NSW) (1964) 112 CLR 125. His Honour then went on to say:

[17]   … On the other hand, the fact that there is a triable issue whether the defendant had a lease governed by the Retail Leases Act does not entitle it to the order which it seeks, that is, an order under s75(1) of the Act that these proceedings be transferred to the Administrative Decisions Tribunal.

[18]   To make such an order I would have to be satisfied that the proceedings involve a “retail tenancy dispute”. That expression is defined in s63 of the Act as “any dispute concerning the liabilities or obligations… of a party or former party to a retail shop lease or former lease…”. The central question in this litigation is whether the defendant had the benefit of a retail shop lease to which the Act applies and that is not a matter which I could, or should, resolve at this early stage. The pleadings are not closed, discovery has not taken place, and the only evidence before me is the untested affidavit of Mr Fitzgerald.

43. In a similar way, before I would make any order pursuant to s 75 of the Act, I would have to be satisfied that the proceedings involve a “retail tenancy dispute”. That is the issue between the parties. If there was no agreement the Act does not apply. If there was a tenancy at will (s 127 Conveyancing Act 1919 (NSW)) it was for a term of less than 6 months with the result that s 6A(1) would remove jurisdiction from the Tribunal. I cannot be satisfied that the proceedings involve a retail tenancy dispute as that term is defined. In those circumstances s 75 is not engaged because its premise is a retail tenancy dispute which in turn assumes an agreement as defined.

44. However, even if it was accepted that a broad reading of the words “involve a retail tenancy dispute” would, contrary to what I have held earlier, include a dispute about whether there is a retail lease, it is necessary for the Court to be satisfied of both the matters in s 75(1)(a) and (b). In my opinion I could not be satisfied that the interests of justice do not require that the matter be dealt with by the Court. That is for two reasons. First, if the Tribunal determines that it has no jurisdiction (because there is not a retail shop lease) it would be necessary for the proceedings to come back to this Court for determination. Secondly, the whole of the dispute amongst the three parties cannot be determined in the Tribunal even if the Tribunal has jurisdiction over the dispute between the Plaintiffs and JAM. In neither cases is the outcome consistent with s 56 of the Civil Procedure Act 1995 (NSW). In reaching that opinion I do not overlook what is contained in s 75(2).

45. JAM relies on the terms of s 76(1) because it commenced proceedings in the Tribunal at a time when there was no claim the subject of dispute in civil proceedings pending before a Court. The Plaintiffs argued, as noted earlier, that there are no longer proceedings before the Tribunal because of the order made by Harrison J and, in any event, the removal of the proceedings from the Tribunal means that they have been withdrawn, particularly because of JAM’s acts and omissions following the making of the order by Harrison J.

46. I do not consider that the order transferring the proceedings results in a conclusion that the claim lodged with the Tribunal is withdrawn. The term “withdraw” or “withdrawal” in procedural law carries with it the connotation that what is being spoken of is being taken back by the party who filed, lodged or put forward the matter – see for example Pt 12 Uniform Civil Procedure Rules 2005 (NSW). I would not understand the word “withdrawn” in s 76(1)(a) as including an order either by the Tribunal itself or a court removing the proceedings to some other court or tribunal. Moreover, the order made was one for the removal of the Tribunal Proceedings to the District Court to be heard with the District Court proceedings. It cannot be said that the Tribunal Proceedings do not continue, albeit that they are being heard in a different place.

47. I do not agree with the construction of s 76 advanced by the Plaintiffs and also adopted by CH Real Estate. In my opinion where the word “lodged” appears in s 76(1) (in three places) it is referring to an event in the past. That appears most clearly at the second reference to “lodged” where what is being spoken of is at a point in time in the past when the claim was first lodged with the Court. Moreover, s 76(1)(a) provides exhaustively for the occasions when the claim will no longer be regarded as being lodged, that is, when the claim is withdrawn or when the claim is dismissed for want of jurisdiction. The enquiry for jurisdictional purposes is the time a claim is lodged with the Tribunal if it is a retail tenancy claim. If at that time there was no issue arising under a retail tenancy claim that was the subject of a dispute in civil proceedings pending before a court, then jurisdiction is given to the Tribunal and the Court does not have jurisdiction. The only exceptions are those set out in paragraphs (a) and (b).

48. In its supplementary submissions CH Real Estate raised the approach that should be taken to ordering a transfer of the Tribunal Proceedings from the District Court to this Court. CH Real Estate submitted that an order transferring the proceedings back to this Court would be inconsistent with the order made by Harrison J. It was submitted that Harrison J’s order could be set aside under r 36.16(3) UCPR because it is an interlocutory order so long as there has been a material change in circumstance since the making of the order. CH Real Estate submitted that there has been no such material change in circumstances. Nevertheless, CH Real Estate supported the Plaintiffs’ application to transfer the proceedings to this Court.

49. The principle was articulated in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 where McLelland J said:

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations.

…

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it will operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be found that on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court of the hearing of the original application.

50. What is being sought in the present case is not a discharge of Harrison J’s order. If it were to be discharged the Tribunal Proceedings would be returned to the Tribunal. At best, Harrison J’s order is being varied so that the Tribunal Proceedings are transferred to this Court, but in addition a new order is being made to transfer the District Court proceedings to this Court.

51. Moreover, the order made by Harrison J scarcely falls into the category of orders such as McLelland J was referring to. Justice Harrison’s order was a procedural order which was made in the context of District Court proceedings between the Plaintiffs and CH Real Estate. Since the making of that order those proceedings have been broadened to name JAM as a defendant and are now sought further to be amended to seek relief which the District Court has no jurisdiction to grant.

52. Further, JAM has by Cross-Claim sought relief which the District Court cannot grant. Whatever else happens, the District Court proceedings must be transferred to this Court. Arguably, the Tribunal Proceedings must also be transferred because they seek an injunction which the District Court cannot give. In any event, the necessity for the transfer of the District Court Proceedings should be regarded as a sufficient change of circumstances to justify varying Harrison J’s order, if that is how the transfer should be viewed.

53. In my opinion, however, any order that I make transferring the Tribunal Proceedings to this Court, which is simply another interlocutory order in any event, does not involve either a discharge or a variation of the order made by Harrison J.

Conclusion

54. Accordingly, I make the following orders:

(1) An order under s 140(2) of the Civil Procedure Act 2005 (NSW) transferring to this Court proceedings currently before the District Court of NSW being:

(a)   Case number 2014/164670 including proceedings on the First Cross-Claim in those District Court proceedings; and

(b)   Proceedings originally commenced in the NSW Civil and Administrative Tribunal and designated as file number COM 14/15094 and transferred to the District Court on 12 June 2014 and given District Court case number 2014/174830.

(2)   Direct that the two transferred proceedings be heard together with evidence in each being evidence in the other.

(3)   Dismiss the Cross-Summons.

55. I will hear the parties on the costs of the Summons and the Cross-Summons. Only JAM said anything about costs in its written submissions. By way of assistance to the parties I indicate that my prima facie view is that each of the Plaintiffs and JAM should pay their own costs of both the Summons and the Cross-Summons but that the Plaintiffs should pay the First Defendant’s costs of the Summons. Although the Plaintiffs were largely successful in respect of the orders that they sought, those orders were necessitated by the fact that the Plaintiffs in the first instance sought the transfer of the Tribunal Proceedings to the District Court. They were ordered to pay JAM’s costs of so doing. The need for those proceedings and the District Court Proceedings to come to this Court has been necessitated by the desire of the Plaintiffs to seek relief not available in the District Court. That was no fault of the First Defendant. As far as JAM is concerned, it was unsuccessful on its Cross-Summons.

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Decision last updated: 23 November 2015