CITATION: Parris -v- Katsivardas [2002] NSWADT 150 DIVISION: Retail Leases Division APPLICANT PARTIES: George Parris t/as Tasty Bites RESPONDENT Pavlos Katsivardas t/as Pavlos's Pizzeria FILE NUMBER: 025052 HEARING DATES: 12/06/02 SUBMISSIONS CLOSED: 06/12/2002 DATE OF DECISION: 08/23/2002 BEFORE: Montgomery S - Judicial Member APPLICATION: Claim for payment of money MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: APPLICANT R Coyle, solicitor REPRESENTATION: RESPONDENT In person ORDERS: Application No. 025052 brought by Mr. George Parris against Mr. Pavlos Katsivardas is dismissed for want of jurisdiction. 1 This is an application brought by Mr. George Parris t/as Tasty Bites ("the Applicant") against Mr. Pavlos Katsivardas trading as Pavlo's Pizzeria ("the Respondent") in relation to a shop known as 129 Botany Street Randwick ("the Premises"). The registered proprietor of the Premises is Mr James Parris, the father of the Applicant. 2 The application was filed in the Tribunal on 9 May 2002. The Applicant sought orders in the following terms: "That Mr Katsivardas pay to Mr Parris an amount of $250 lost food stock and $200 lost business in compensation for damaged and perished stock. That Mr Parris get access to his area in the Premises at 129 Botany Street Randwick to conduct his food preparation at the times which are convenient to him." 3 The matter was listed for hearing on 12 June 2002 along with a related matter also involving the Respondent. Ms Robyn Coyle appeared on behalf of the Applicant and the Respondent appeared on his own behalf. BACKGROUND TO THE APPLICATION 4 A Lease was entered between the Respondent and Mr James Parris in relation to the Premises. That Lease dated 19 December 2001 ("the Lease") was stated to commence on 1 January 2002 and terminate on 31 December 2002. 5 It appears that prior to the Lease the Applicant had an informal sublease with Mr James Parris whereby he used part of the Premises for the purposes of food preparation and storage. He is only on the Premises early in the morning, but he stores food an allotted section of the Premises. The Applicant pays rent to Mr James Parris. 6 The Respondent was aware of this arrangement when he entered into the Lease. However, the status of that arrangement is in dispute. The Applicant asserts that the arrangement continues despite the fact that the Lease gives the Respondent the right to the Premises. The Respondent asserts that the arrangement was to continue for the first two months of the Lease period and that thereafter the Applicant was to find new premises. In return, the Respondent was given a rent free period for the first two months of the Lease. 7 The Applicant asserts that at mediation of a dispute between the Respondent and Mr James Parris on 19 April 2002, the Respondent agreed that the arrangement could continue and that no conditions were put on the continuation of the arrangement. In contrast, the Respondent asserts that the Applicant's access to the Premises was to be subject to the Respondent's rights under the Lease. The Applicant would be permitted to enter the Premises only when the Respondent was present. 8 The Mediation Agreement dated 19 April 2002 makes no mention of the alleged agreement that the arrangement between the Applicant and Mr James Parris could continue. The Applicant's Case 9 The Applicant's evidence is that Respondent had told him that he would give him a key to the Premises, but only on the condition that the Applicant did not allow his cook into the building, and also that the Applicant could only be on the Premises when the Respondent was there. The two use the building at opposite ends of the day. The Applicant stated that on Saturday 6 May 2002, he went to the Premises to remove signage and perishable stock for use in his business at the University of New South Wales. On arrival at the Premises, the Applicant discovered that the Respondent had changed the locks and that the Applicant was unable to get access to the Premises to recover his signage and stock. Some of the stock had to be discarded. The Respondent gave the Applicant no notice of his intention to change the locks. 10 On Monday 8 May 2002, the Applicant had stock delivered to the Premises. This stock included perishables, chicken, and vegetables. As a result of the Applicant's inability to obtain access to the Premises, the stock was not refrigerated, and became spoiled. Of the stock on hand, the Applicant could only salvage stock to the value of about $100. 11 In addition, the Applicant alleged that he has had to lay off one staff member who had previously been employed in the preparation of food at the Premises. 12 The Applicant relied on the invoices in relation to what he said was perished stock. Those invoices comprised: · Tax invoice from Pappas Cakes totalling $70.00 · Tax invoices from Vaia's Gourmet Kitchen dated 2/05/02, 3/05/02, for the amount of $384.00 · Tax invoice from EIfes Pry Ltd, Fruiterers dated 02/05/02 for the amount of $133.60 · Tax invoice from Elfes Pty Ltd, Fruiterers, dated 03/05/02 for the amount of $55.60. · Tax invoice from Elfes Pty Ltd Fruiterers date 01/05/02 for the amount of $50.90 · Tax invoice from YCC Poultry dated 03/05/02 for the amount of $129.00. 13 As indicated above, the Applicant's claim was for an amount of $450. At the hearing the Applicant reduced this claim by an amount of $100 allowing for stock that had been salvaged. The Respondent's Case 14 The Respondent's evidence is that he had agreed to the Applicant having access to the Premises on the condition that he only attended the Premises when the Respondent was there. The Applicant was to advise the Respondent when he wanted access to the Premises. The Applicant did not agree to that condition and showed no respect for the Respondent's rights to the Premises. The Respondent changed the locks to the Premises because the Applicant did not respect his privacy. The Applicant had entered the Premises three or four times, had slammed doors and had broken the locks. The Respondent said that he informed the Applicant prior to changing the locks. 15 With respect to the alleged loss of perishable items, the Respondent asserted that the Applicant had reasonable access to the premises and could have gone to collect the items. The Respondent said that he usually works in the Premises each morning preparing food, and the Pizzeria is open until midnight. Access was readily available to the Applicant. The Respondent therefore denied any liability for the losses which the Applicant alleged he had incurred. Relevant legislation 16 The Lease is governed by the Retail Leases Act 1994. The provisions of that Act which are relevant to these proceedings are found in sections 70 to 72. Those sections provide: "70 Definitions In this Division: retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for the payment of a specified sum of money, (ii) a claim for relief from payment of a specified sum of money, (iii) a claim for the doing of specified work or the provision of specified services, (iv) a claim for the surrender of possession of specified Premises, (v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, (vi) a claim for relief against forfeiture, (vii) a claim regarding the rectification of the lease, (viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations, (ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease, (x) without limiting the generality of subparagraph (i) a claim for compensation under section 10, (b) an application under section 19 (3) or 31 (3) by a specialist retail valuer, (c) a claim against a specialist retail valuer under section 19A (3) or 31A (3) for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information." "71 Lodging of retail tenancy claims with Tribunal (1) A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim. (2) A claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose. Note. Under section 37 of the Administrative Decisions Tribunal Act 1997 , the effect of enabling applications to be made to the Tribunal is to confer jurisdiction on it. By virtue of section 142 of that Act, an application includes a mechanism by which an Act provides for a matter to be brought to the attention of the Tribunal for an original decision." "72 Powers of Tribunal relating to retail tenancy claims (1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate: (a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, …" Findings 17 On the evidence before me I am not satisfied that the dispute between the parties is a retail tenancy claim in respect of which the Tribunal has jurisdiction. The Applicant is neither a party nor former party to a retail shop lease or former retail shop lease with the Respondent. He therefore has no standing to bring a retail tenancy claim against the Respondent for determination by the Tribunal. In my view the Tribunal has no jurisdiction to determine this matter. It follows that the application must be dismissed for want of jurisdiction. 18 Notwithstanding that view, I am not satisfied on the evidence before me that the Applicant had any entitlement to access the Premises other than at the discretion of the Respondent. The Lease provides the Applicant no right to access the Premises, nor does the Mediation Agreement. At the time that the incident to which this application relates occurred, the Lease had not been terminated and the Respondent was still in control of the Premises. I am satisfied that the Respondent was often at the Premises and that the Applicant could have taken advantage of the Respondent's availability at the Premises to obtain access to his signage and stock. If the Applicant chose not to do so, for whatever reason, the Respondent cannot be held liable for whatever losses the Applicant incurred. Orders Application No. 025052 brought by Mr. George Parris against Mr. Pavlos Katsivardas is dismissed for want of jurisdiction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.