Zeus & RA Pty Ltd v Nicolaou - [2003] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6193 of 2002

ZEUS & RA PTY. LTD.
	Appellant
	v.
JIM NICOLAOU	Respondent
	No. 3760 of 2002 Appellantt

JIM NICOLAOU

ZEUS & RA PTY. LTD. and Respondents

PETER F. AMAD

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JUDGES:	WINNEKE, P., CHARLES and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2003
DATE OF JUDGMENT:	28 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 11

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LANDLORD AND TENANT – Retail tenancies – Retail Tenancies Reform Act 1998, s.3 – “Retail premises” – Whether floor area exceeds 1,000 sq. m. – Meaning of “floor area” – Guidelines for the Measurement of Lettable Areas 1999 – Guidelines issued under s.3(5) of Act – Meaning of “lettable areas” – Whether “lettable area” synonymous with “floor area” – Whether demised premises “commercial buildings” – Jurisdiction of Victorian Civil and Administrative Appeal Tribunal – Sorbara v. D.J. and A.J. McCallum Pty. Ltd. [1999] 2 V.R. 1.

LANDLORD AND TENANT – Lease – Forfeiture of lease – Fair trading dispute – Jurisdiction of VCAT – Whether VCAT has jurisdiction to hear fair trading dispute between former tenant and landlord – Retail Tenancies Reform Act 1998, ss.3, 34, 35; Fair Trading Act 1999, ss.3, 107, 108.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/ Respondents	Mr G.K. Moore	Goldsmiths
For the Respondent/ Appellant	Mr M. Clarke Mr D. Manly	Dennis Raftis & Associates

WINNEKE, P.:

I have had the advantage of reading the draft reasons for judgment of Charles and Eames, JJ.A. I agree with their Honours that each of these appeals should be dismissed for the reasons which they give.

CHARLES, J.A.:

EAMES, J.A.:

Two proceedings are before the Court on appeal. In matter No. 6193 of 2002 Zeus & Ra Pty. Ltd. (“Zeus & Ra”), as appellant, contends that Byrne, J. was in error in concluding that a lease over premises made between the appellant and the respondent, Jim Nicolaou (“Nicolaou”), was not governed by the Retail Tenancies Reform Act 1998 (“the 1998 Act”). In the second appeal, matter No. 3760 of 2002, the roles of the parties are reversed and Nicolaou seeks to overturn a ruling by Judge Bowman, a Vice-President of the Victorian Civil and Administrative Tribunal (“VCAT”) who rejected an application by Nicolaou to strike out an application in which Zeus & Ra sought damages against Nicolaou and also one Peter Amad[1] arising out of a dispute between the landlord and tenant under the lease, which lease had been terminated by Nicolaou.
[1]The claim against Amad, related to his professional advice to Zeus & Ra as its former solicitor. Amad took no part in the appeal and we were advised he proposed to make no submissions and would abide by the court’s decision on this appeal.

The dispute in both cases related to the lease of premises at 35-41 Hoddle Street, Richmond. The demised premises comprised a total of 1,366 square metres. On the demised premises there was only one, derelict, building, which had once comprised an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSCA 11
Decision Date: 28 February 2003

CaseChat Overview and Summary

Zeus & RA Pty Ltd v Nicolaou was a case before the Supreme Court of Victoria concerning the interpretation of the Retail Tenancies Reform Act 1998 and the applicability of the Guidelines for the Measurement of Lettable Areas 1999. The landlord, Zeus & RA Pty Ltd, sought to evict the tenant, Nicolaou, on the basis that the premises exceeded 1,000 square metres, thus falling outside the scope of the Act. The tenant contested this, arguing that the premises did not exceed the specified area.

The central legal issues revolved around the definitions of "retail premises" and "floor area" as per the Retail Tenancies Reform Act 1998. Specifically, the court had to determine if the term "floor area" as used in the Act was synonymous with "lettable area" as defined in the Guidelines, and whether the demised premises constituted a "commercial building." Additionally, the court examined the jurisdiction of the Victorian Civil and Administrative Appeal Tribunal (VCAT) to hear a fair trading dispute between the former tenant and the landlord.

The court concluded that the term "floor area" in the Act was indeed synonymous with "lettable area," and that the premises did not exceed 1,000 square metres. Furthermore, the court held that the demised premises were not commercial buildings. The court found that VCAT had jurisdiction to hear the fair trading dispute, as per the Retail Tenancies Reform Act 1998 and the Fair Trading Act 1999. The Supreme Court upheld the decision of VCAT, affirming its jurisdiction over the matter.

Orders