Swan Kitchens Pty Limited v Wisepeople Investments Pty Limited [2019] NSWCATCD 78

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Swan Kitchens Pty Limited v Wisepeople Investments Pty Limited [2019] NSWCATCD 78 Hearing dates: On the papers Date of orders: 1 November 2019 Decision date: 01 November 2019 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. The Tribunal does not have jurisdiction. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Retail Leases Act 1994 (NSW) Sale of Goods Act 1923 (NSW) Cases Cited: Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87 Lauven Pty Limited v Venus Adult Shops Pty Limited (2006) NSWADT 359 Manly Council v Malouf (2004) 61 NSWLR 394 Thompson v Easterbook (1951) 83 CLR 467 Category: Principal judgment Parties: Swan Kitchens Pty Limited (Applicant) Wisepeople Investments Pty Ltd (Respondent) Representation: Redmond Hale Simpson (Applicant) JSM Lawyers (Respondent) File Number(s): COM 19/22589 Publication restriction: Nil

REASONS FOR DECISION 1. The issue for determination by this Tribunal is whether a "Kitchen Showroom" should be considered a 'retail shop lease' so as to be governed by the terms and provisions of the Retail Leases Act 1994 (RLA). 2. Swan Kitchens Pty Ltd (the applicant), as lessee, entered into a lease with Wisepeople Investments Pty Ltd (the respondant), as lessor, in respect of the premises described in the lease as Part Folio Identifier 1/132/786434 known as 1/244-256 Taren Point Road, Taren Point described as first floor office and terrace (the premises) being registered lease number AJ789735 (the Lease). 3. The permitted use under clause 1 of Section B of the Lease provides that the premises is not to be used for any other purpose than as "Kitchen Showroom". 4. The applicant filed an Application for Original Decision seeking a declaration regarding the validity of the Lease pursuant to s 72 of the RLA dealing with retail tenancy claims. A retail tenancy claim under s 71 of the RLA must relate to a retail shop lease. 5. On 12 June 2019 the Tribunal ordered that the issue of jurisdiction of the Tribunal would be dealt with on the papers, unless a party objected.