CITATION: Wood & Wilson -v- Bergman [2003] NSWADT 82 DIVISION: Retail Leases Division PARTIES: APPLICANT
Anthony Peter Wood
Leanne Maree Wilson
RESPONDENT
Angelique BergmanFILE NUMBER: 025084 HEARING DATES: 18/03/2003 SUBMISSIONS CLOSED: 03/18/2003 DATE OF DECISION:
04/23/2003BEFORE: Chesterman M - ADCJ (Deputy President) APPLICATION: Damages MATTER FOR DECISION: Principal matter LEGISLATION CITED: Environmental Assessment and Planning Act 1979
Retail Leases Act 1994CASES 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 205REPRESENTATION: APPLICANT
J Priestly, Barrister
RESPONDENT
M Baker, BarristerORDERS: 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…
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- AGLC
- Wood & Wilson v Bergman [2003] NSWADT 82
- Case
- [2003] NSWADT 82
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the lease was a retail shop lease under the Act and if the Retail Leases Tribunal had jurisdiction to determine the application brought by the lessees. The court had to consider the statutory definition of a retail shop lease and the specific terms of the lease in question to ascertain whether the lease fell within the definition. The court also needed to determine if the Tribunal had jurisdiction over the application made by the lessees.
The court found that the lease did not constitute a retail shop lease as defined by the Act. The court examined the specific terms of the lease and concluded that it did not meet the statutory criteria for a retail shop lease. Consequently, the Tribunal did not have jurisdiction to determine the application brought by the lessees. The court dismissed the application, holding that the lease was not a retail shop lease and that the Tribunal did not have jurisdiction to hear the application.
The Supreme Court of New South Wales declared that the lease was not a retail shop lease under the Retail Leases Act 1994. The court also declared that the Tribunal did not have jurisdiction to determine the application brought by the lessees. The application was dismissed, and no further orders were made.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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