Wood & Wilson v Bergman

[2003] NSWADT 82

CITATION:	Wood & Wilson -v- Bergman [2003] NSWADT 82
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Anthony Peter Wood Leanne Maree Wilson RESPONDENT Angelique Bergman
FILE NUMBER:	025084
HEARING DATES:	18/03/2003
SUBMISSIONS CLOSED:	03/18/2003
DATE OF DECISION:	04/23/2003
BEFORE:	Chesterman M - ADCJ (Deputy President)
APPLICATION:	Damages
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Environmental Assessment and Planning Act 1979 Retail Leases Act 1994
CASES CITED:	Moweno v Stratis [2002] NSWSC 1151 Thompson v Easterbrook (1951) 83 CLR 467 Westropp v Elligott (1884) 9 App Cas 815 Randi Wixs Pty Ltd v Pokana Pty Ltd [2002] NSWADT 205
REPRESENTATION:	APPLICANT J Priestly, Barrister RESPONDENT M Baker, Barrister
ORDERS:	1. Declare that the lease between the parties is not a retail shop lease under the Retail Leases Act 1994; 2. Declare that the Tribunal does not have jurisdiction to determine the Lessees' application; 3. Application dismissed.

Introduction

1 In this matter, the applicant Lessees, Mr Anthony Peter Wood and Ms Leanne Maree Wilson, applied for relief by way of damages under the Retail Leases Act 1994 (NSW) (“the Act”) in relation to a lease of premises at 16 Granuaille Road, Bangalow that had been granted to them by Ms Angelique Bergman (“the Lessor”). On 18 March 2003, a preliminary hearing was held to determine whether the Tribunal had jurisdiction to grant relief. Mr J Priestley of Counsel, instructed by Hertzberg Heydon, Solicitors, appeared for the Lessees. Mr M Baker, Solicitor, instructed by Mr P Smith, Solicitor, appeared for the Lessor.

2 The Lessees claimed that this lease was a retail shop lease within the definition in s 3 of the Act and that the Tribunal accordingly had jurisdiction to grant the relief sought. The Lessor claimed that the Tribunal had no jurisdiction because the lease fell outside this definition.

The subject matter of the lease

3 In the course of this hearing it emerged that there had been uncertainty as to the precise scope of the premises leased. The Lease itself was signed by the Lessor and both Lessees, apparently on or just before 1 July 2000. It was expressed to commence on that day and terminate on 30 June 2001. It described the property leased simply as “16 Granuaille Road, Bangalow”. The Lessor was the registered proprietor of the whole of this property.

4 However, in the statements filed before the hearing by Mr J Stearn, who was the Lessor’s husband and managed all aspects of the lease on her behalf, and by Mr A Wood, one of the Lessees, the lease was said to cover only parts of the property. Mr Stearn and Mr Wood concurred in stating that the lease covered only the following areas: (a) one of three shops on the property (“Shop 1”); (b) an adjacent external area between Shop 1 and Granuaille Road, which was covered by an awning sheltering three petrol pumps; (c) a driveway to one side of Shop 1, which was designated in a plan annexed to Mr Stearn’s statement as “shared” between…