Webb v. Clifton
[2008] NSWADT 132
•1 April 2008
CITATION: Webb v Clifton [2008] NSWADT 132 DIVISION: Retail Leases Division PARTIES: APPLICANT
RESPONDENT
Barry Webb
Tony CliftonFILE NUMBER: 085049 HEARING DATES: 27 March 2008, 1 April 2008 SUBMISSIONS CLOSED: 1 April 2008
DATE OF DECISION:
1 April 2008BEFORE: Molloy GB - Judicial Member CATCHWORDS: Interim order - removal of goods MATTER FOR DECISION: Principal matter LEGISLATION CITED: Retail Leases Act 1994 CASES CITED: Holden Tourism & Hospitality Pty Limited v Baldock [2001] NSWADT 123
Nam v Commonwealth Funds Management [2002] NSWADT 80
Nam v Commonwealth Funds Management Limited (No 2) [2002] NSWADT 120
Spuds Surf Chatswood Pty Limited v P T Limited [2007] NSWADT 130REPRESENTATION: APPLICANT
RESPONDENT
In person
In personORDERS: 1. I rescind the Orders made 27 March 2008
2. The Respondent, on Wednesday 2 April 2008 from 9.00am until 10.00pm and thereafter on each week day and weekend between the hours of 9.00am and 10.00pm until 5.00pm 13 April 2008, permit the Applicant access to the premises; 74-78 Bloomfield Street, Gunnedah for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment
3. The proceedings are adjourned to 24 April 2008 at 12 noon with a view to dismissal
4. Liberty to apply
5. The Registrar is requested to take out a copy of this ex-tempore decision and provide a copy to the parties.
REASONS FOR DECISION
Background
1 The Applicant is one of the lessees of premises, 74-78 Bloomfield Street, Gunnedah, pursuant to a lease dated 1 March 2006. The Respondent is one of the lessors. (There was no issue that all contract parties were appropriately represented and before the Tribunal). The lease is for a term of three years with a three year option, commencing 1 March 2006 and ending 28 February 2009 subject, of course, to the three year option.
2 The lease provides that the Applicant, as lessee, will pay $1,191.66, inclusive of GST, for the first six months and I take it that that is monthly. The premises are to be used as a secondhand furniture and sundry sales purposes. Under clause 9 of the lease the Applicant has covenanted “To pay rent promptly, and in advance and in the manner that the landlord [that is the Respondent] may direct from time to time.”
3 There are provisions in the lease for giving the Applicant, as lessee, notice, and those provisions are in clauses 29, 31(b) relevantly, 31(b)(2), 31(h), 31(i).
Application
4 The Applicant, by Application for Original Decision filed 19 March 2008, sought an order, “To be let back into the shop to remove all the stock, return to owner theirs and take our own.” The Applicant also filed, in the Tribunal, an Application for Urgent Interim Order on 19 March 2008 seeking a similar order, asserting that the conduct of the Respondent was unconscionable. The Applicant asserted that no notice was given, verbal or written, and the actions of the Respondent were, “heavy handed.”
5 The Respondent was not present on the last occasion (27 March 2008) and the Respondent believed that the Tribunal would be dealing with him by telephone. The Tribunal, on the other hand, was of the view that the matter had been governed by the Respondent’s letter to the Tribunal dated 25 March 2008. But, in any event, an Interim Order was made on 27 March 2008 permitting the Applicant back into the premises during certain periods and times up until 19 April 2008 for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment.
6 In order to protect the interests of the Respondent Order 2 made 27 March 2008 was “Liberty to apply.” I requested the Registry to notify the Respondent in writing and by telephone. The Registry did so and the Respondent indicated clearly that he wished to be heard. As a consequence, on the same day, 27 March 2008, in chambers, I stayed the orders previously made that day until 10.00am this morning and I listed the matter at 10.00am this morning.
Hearing
7 Mr Clifton appears today representing the Respondent and Mr Barry Webb appears today by telephone representing the Applicant. Mr Webb seeks the orders that he sought in his Application for Urgent Interim Order. The Respondent has indicated that they have no objection, as I understand their submission, to the Applicants going back into occupation for the purposes of removing their own stock and other stock held by them on consignment for sale but were not happy with the length of time that was provided to the Applicant under the Orders that I made ex-tempore and ex-parte on 27 March.
8 There is no doubt that the Applicant is in arrears of rent to the tune of $5,851.88 up to and including, as I understand it, 1 April 2008. There is a dispute between the parties about the actions that were taken by the Respondent or the Respondent’s agent prior to 10 March 2008, when, on that day, the Applicant was locked out of the premises. There is an argument as to what happened beforehand and there is an argument between the parties on whether sufficient notice was given.
Jurisdiction
9 It is unfortunate from the point of view of the law, as distinct from the facts, that the parties are unrepresented because the law in relation to this type of application is not entirely clear.
10 The Applicant’s Application is brought under the Retail Leases Act and seeks entry to the premises for the purposes of removing goods and chattels. The lease contract itself states that upon termination or expiry of the lease the tenant, that is, the Applicant, “Shall promptly and peacefully give the landlord [ that is, the Respondent] vacant possession of the premises.” That clause is clause 31(i). And 31(h) talks about removal of fixtures and signs upon termination or expiry of the lease. The Respondent would assert, as I understand the argument, that the lease has, in fact, been terminated by the taking of possession because of the state of arrears of rent, all efforts having been made to attempt to persuade the Applicant to pay the rent.
11 There may be some argument on whether this Tribunal has jurisdiction to deal with this type of application. Applications of this nature are brought under Retail Leases Act Section 70, which defines what is “a retail tenancy claim”.
12 In my opinion the categories included in that definition ought not to be given a narrow or restricted interpretation.
13 Section 63 defines a “retail tenancy dispute” as:
14 The important words, in my opinion, in that definition are: “arose under the lease” and the words “arose in connection with the use or occupation of the retail shop.” These words, coupled with the extended or encompassing interpretation usually given to the words “in connection with”, make it plain, in my view, that a “retail tenancy dispute” incorporates a dispute relating to the use and occupation of a retail shop such as to incorporate a dispute as to the goods and chattels in the shop, not being a dispute between the lessor and lessee and an outside party but rather a dispute between the lessor and lessee relating to those goods and chattels within the leased premises.
“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.”
15 By this interpretation, or statutory construction, multiplicity of suits is avoided and this, in my opinion, was the legislative intent behind the Retail Leases Act 1994 and the setting up of this Division of the Administrative Decisions Tribunal, effectively (with some exceptions) creating a one-stop shop for lessors and lessees to argue/resolve their disputes.
16 There is no doubt the dispute now before me arises in connection with the use or occupation of a retail shop to which the lease between the parties relates such that it falls within the definition of “retail tenancy dispute” within Section 63(1).
17 The real question is: is it a “retail tenancy claim” within Section 70? In my opinion, the answer is: “Yes”. This dispute is clearly caught, for the reasons I have just set out, by the opening words of Section 70(a) being “a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned.”
18 In addition, in my opinion it falls within section 70(a)(ix) for the reasons I touched upon in Holden Tourism & Hospitality Pty Limited v Baldock [2001] NSWADT123 at 19-20. In those paragraphs I referred to the interrelation of Sections 63, 70 and 72 of the Act. I adhere to the reasoning therein expressed. In my view the words, “under the lease,” in Section 70(a)(ix) incorporate, by reading Section 63 and the opening words of Section 70(a), the type of dispute that is now before the Tribunal.
19 I take a fairly wide-embracing view of the Retail Leases Act 1994. In my opinion, and without seeking to repeat the observations of the learned President in Nam v Commonwealth Funds Management [2002] NSWADT 80 and Nam v Commonwealth Funds Management Limited (No 2) [2002] NSWADT 120, relevantly summarised in Spuds Surf Chatswood Pty Limited v P T Limited [2007] NSWADT 130 at 62-69, the Retail Leases Act 1994 is remedial legislation and as such should be given an interpretation or construction consistent with its clear, legislative intent to create a regime which offers to lessors and lessees and guarantors a single tribunal in which to ventilate their disputes arising “in connection with the use or occupation of the retail shop to which the lease ... relates.”
20 Consequently, in my opinion, this Tribunal has jurisdiction to hear and determine the dispute between the parties as set out in the Application for Original Decision. It is important, in my opinion, to make the above observations in case it is subsequently argued that this Tribunal did not have jurisdiction. No party has asserted that the Tribunal does not have jurisdiction but it is important that the Tribunal endeavour to ensure as best it can that it does, in fact, have jurisdiction in unusual circumstances like this where the only application before it is to have access to premises for the removal of stock. I am satisfied the Tribunal has jurisdiction.
Reasoning
21 The other important point to observe is that Retail Leases Act, Section 74(1) requires the Tribunal to bring or use its best endeavours to bring the parties to the claim to a settlement acceptable to all of them.
22 One’s experience in the law shows something in the order of 97 percent of matters are, in fact, settled and do not require judicial determination. In my view, and having regard to what I have been told by the Applicant and the Respondent today, this is clearly a matter that ought to be settled and has, in fact, been settled by the goodwill of the Respondent [in particular] in coming to the Tribunal today and informing the Tribunal that the Respondent is prepared to permit the Applicant access to the premises for the purposes specified in the Interim Order made 27 March 2008.
23 The Respondent has complained that the terms of that Order are too wide in that they permit the Applicant access to the premises until 19 April 2008 whereas the Respondent submits, understandably and correctly, in my respectful opinion, that the length of the period should be truncated.
24 The Respondent sought an order admitting the Applicant access for a week, but I think that is too short in the circumstances. The male Applicant is, on my understanding, disabled and will require some additional time, and I think the Respondent has conceded that situation.
25 I am also informed by the Applicant that upon removal of the goods by 13 April 2008 that will dispose of the issues between them and the Respondent such that there will be no need for further intervention by this Tribunal. I would expect the Applicant to comply with the orders that I am now about to make such that by 5.00pm on 13 April 2008 the Applicant will have removed from the premises all his goods and chattels and those of other persons which are given to them on consignment for sale and the premises are left in good order and condition and in accordance with the terms of the lease.
26 In those circumstances, and save for any other application by the Applicant, I would propose that the proceedings be stood over until 24 April 2008 at 12 noon with a view to dismissal. I inform the parties that I will dismiss these proceedings effectively by consent on 24 April 2008, in chambers, at 12 noon absent any application made by either party arising out of the current Application before this Tribunal. Should the Respondents wish to agitate some other claim that they may have that is a matter for them and they can commence their proceedings as they may be advised.
27 Finally, I note that the parties are unrepresented today and although the matter has been settled, effectively by the concessions made by the Respondent today, for which I am grateful, I indicate [without making any findings] that there does not appear to have been compliance with Conveyancing Act 1919 section 129. That is a matter for the parties about which they can obtain their own legal advice.
Orders
1. I rescind the Orders made 27 March 2008
2. The Respondent, on Wednesday 2 April 2008 from 9.00am until 10.00pm and thereafter on each week day and weekend between the hours of 9.00am and 10.00pm until 5.00pm 13 April 2008, permit the Applicant access to the premises; 74-78 Bloomfield Street, Gunnedah for the purpose only of removing therefrom goods and chattels owned by the Applicant or in the possession of the Applicant for sale by consignment
3. The proceedings are adjourned to 24 April 2008 at 12 noon with a view to dismissal
4. Liberty to apply
5. The Registrar is requested to take out a copy of this ex-tempore decision and provide a copy to the parties.
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