Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91

CITATION: Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91

DIVISION: Retail Leases Division

FIRST APPLICANT, SECOND RESPONDENT PARTIES: Abdul Sarker FIRST RESPONDENT, SECOND APPLICANT World Best Holdings Ltd

FILE NUMBER: 045136; 045137

HEARING DATES: 27/09/05

SUBMISSIONS CLOSED: 11/24/2005

DATE OF DECISION: 03/28/2006

BEFORE: Fox R - Judicial Member

CATCHWORDS: Application to transfer

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Retail Leases Act 1994 Retail Leases Amendment Act 2005

CASES CITED: Attorney General of NSW v World Best Holdings Ltd & Ors [2005] NSWCA 261 Keighery v Nodarb Investments Pty Ltd [2005] NSWADT 241

FIRST APPLICANT, SECOND RESPONDENT S Docker, barrister REPRESENTATION: FIRST RESPONDENT, SECOND APPLICANT M J Ellicott, barrister

ORDERS: 1.Application pursuant to Section76A to transfer matters 045136 & 045137 refused; 2 Both matters listed for Directions on 20 April 2006 at 10.30 am; 3 Costs reserved.

REASONS FOR DECISION 1 This is an Application by World Best Holdings for transfer to the Supreme Court pursuant to Section 76A of the Retail Leases Act 1994 ("the Act") of matter number 045136 Sarker v World Best Holdings ("Sarker") and matter number 045137 World Best Holdings v Sarker ("WBH"). It was filed on 9 September 2005 and was the subject of directions on 15 September 2005, and a short interlocutory hearing on 27 September 2005. At the short interlocutory hearing I raised my concerns about the quite precise limits imposed by Section 76A, as illustrated by my decision in the matter of Keighery v Nodarb Investments Pty Ltd [2005] NSWADT 241. I called for written submission, those from World Best Holdings were filed on 10 November 2005, but Mr Sarker has not taken the opportunity to respond. It is appropriate to indicate that Ms Kind who appeared for Mr Sarker on the last occasion indicated that he would simply abide by whatever orders the Tribunal might make. 2 In the discussion that took place on 27 October 2005 I referred to the "riding instructions" in Section 75 which are that the Tribunal is the preferred specialist forum for the consideration of retail tenancy claims. Mr Ellicott correctly at the time, and subsequently in the written submissions, drew my attention to the fact that Section 75 falls on the retail lease dispute "side" of the rigid distinction drawn by the Act between retail tenancy claims and unconscionable conduct claims. It is clear that the "preferred Tribunal" requirement only applies to retail tenancy claims, and that no such restriction applies in relation to unconscionable conduct claims. I accept that when Section 75 and Section 76A(as it then was) are considered together, it is clear that the Tribunal is not necessarily the preferred forum for the consideration of unconscionable conduct claims. I also accept that the same applied to "mixed" claims (and that this is now put beyond doubt by the 2005 amendments to Section 76A(1)). 3 That, however, does not dispose of the matter. It is appropriate to quote the Section 76A in full, and to show the changes effected by the Retail Leases Amendment Act 2005. (1) A party to proceedings before the Tribunal for an unconscionable conduct claim, [ or partly for an unconscionable conduct claim and partly for a retail tenancy claim ,] may apply to the Tribunal to have the proceedings transferred to the Supreme Court. (2) The Tribunal must transfer the proceedings if the Tribunal is satisfied that: (a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court, and (b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal. (3) The Supreme Court has jurisdiction to hear and determine proceedings [ for an unconscionable conduct claim ] transferred to it under this section and may make any orders and do anything that the Tribunal may do in determining an unconscionable conduct claim [ or retail tenancy claim, as the case requires ]. (4) The Supreme Court may exercise all the functions that are conferred or imposed by or under this or any other Act on the Tribunal to determine the unconscionable conduct claim. 4 The words in bold were added by the Amendment Act, and the words in italics were deleted. 5 The plain words of the section are that I have no discretion in the matter once the two (2) elements in sub-sections 2(a) and (b) are established. 6 It is clear that the Sarker Application involves an Unconscionable Conduct Claim, (see Spigelman J in Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 at par 10). But I note that one of the orders made by the Tribunal (at the end of the first hearing) was under Section 72, and so it seems to me to be clear that Sarker is indeed a "mixed" claim, partly unconscionable conduct, and partly retail tenancy. I accept that it was a reasonable implication from Section 77(6) as it then applied (although it only applied to appeals to the Supreme Court, and did not apply to Section 76A transfers) that Section 76A applied to "mixed" proceedings. It would have been nonsense to allow a "pure" unconscionable conduct proceedings to be transferred to the Supreme Court, but to deny that that right to proceedings which involved both a retail tenancy claim and an unconscionable conduct claim. 7 It follows that I had power to transfer Sarker pursuant to Section 76A. 8 Nothing was put to me to suggest that the WBH claim was an unconscionable conduct claim, and I proceed on the basis that it is in truth a retail tenancy claim. In fact I note that Mr Ellicott (at the hearing) envisaged, and that the written submissions conceded that the application of the Keighery v Nodarb decision might give the same "no transfer" result in this matter; the retail tenancy claim remains "live" in this Tribunal and the unconscionable conduct claim is transferred to the Supreme Court. Mr Ellicott (correctly in my view) observed that this brings about an absurd situation. (I note that the 2005 amendments to Section 76A(1) may not have resolved all of the possibilities in this regard, because it seems to me that there are often (as in this present case) two separate and distinct proceedings, one of which is simply and only "for a residential tenancy claim", as envisaged by Section 72, and the other is either "for an unconscionable conduct claim" as per Section 72AA, or is a "mixed" claim. Section 76A (1) as it now exists does not say "A party to proceedings which involve an unconscionable conduct claim (or a "mixed" claim) may apply to the Tribunal to have all proceedings then before the Tribunal between the parties transferred to the Supreme Court.") 9 I remain of the view that I had (and have) no power to transfer WBH, because it is a "pure" retail tenancy claim. 10 For the purposes of these Reasons I accept that both matters involve much the same facts and very similar evidence; Mr Ellicott's submissions offered a practical solution by way of undertaking that, if only the Sarker matter was transferred, he would apply to the Supreme Court to do that which I cannot do: - direct the transfer of the World Best Holding matter to the Supreme Court. A similar undertaking was offered in the written submissions. It is not for me to rule whether the Supreme Court would have the power to do that. However, Mr Ellicott's oral submissions, and the subsequent written submissions, of course, underscore the fact that it would be far preferable if both matters could be conducted in the same forum. 11 In this regard it is appropriate to refer back to Section 76A (2)(b) – "the reasons of justice do not require that the matter be heard in the Tribunal". These words apply, it seems to me, specifically to the two matters under consideration. All other things being equal, it is trite to observe that if there is a way of confining two separate applications to one hearing in the one forum, then that better addresses the needs of justice than bringing about a situation where those two matters, involving much the same facts, are dealt with in two separate places. If it were the case that the test which I have to apply by Section 76A(2)(a) ("effective and appropriate") seemed to me to be finely balanced for or against a transfer to the Supreme Court, then the application of the test in 2(b) ("interest of justice") would require that there be no transfer. Obviously, the absence of a power in me to transfer the Retail Tenancy Claim is a critical consideration in this regard. 12 All of that said, I am satisfied that the whole issue before me turns on the test in Section 76A (2)(a):- is it the case that the Sarker claim is "more appropriately and effectively dealt with in the Supreme Court". 13 Turning again to the debate at the short interlocutory hearing, and to my decision in Keighery v Nodarb, it is clear that if there is a prospect of a party succeeding in an Unconscionable Conduct Claim (or now, a "mixed" claim) for an amount which exceeds the jurisdiction of the Tribunal (then $300,000.00) then that is obviously a matter which falls within the "effective and appropriate" test for transfer. However that appears not to be the case here, nothing was put to me to indicate that the actual amount likely to be ordered to be paid or forgone would be too great. 14 The affidavit evidence of Mr P Biber, solicitor for WBH gave me a detailed chronology of the passage of the matters to date, and the alarming legal costs involved, but raised nothing which addresses the requirements of Section 76A(2). 15 In fact it seems to me that the strongest argument raised in the written submission was that the matter has had a long and difficult (and very expensive) history both before the initial hearing on the facts in the Tribunal, and subsequently in the appeal to the Supreme Court, and then to the Court of Appeal, and then back to the Tribunal, and that that long path establishes that it is a very difficult and complex matter, and that, in turn, brings it within Section 76A (2)(a). However, an analysis of the various stages indicates little that is not expected in a hard fought contest (by a party with deep pockets) over the forfeiture of a retail shop tenancy, once the issues arising from the question of the statutory competence of the Tribunal as constituted by Messrs Donald, Fagg and Griffith are put to one side. 16 If there is, in this part of the written submissions, a suggestion that the issue to be initially decided by the Tribunal (properly constituted) is so finely balanced that, no matter which of the parties is successful at the end of the hearing of the full facts, there will be an appeal, so it is more effective and appropriate to forgo the Tribunal hearing and go straight to the Supreme Court, then I reject that argument absolutely. 17 I am satisfied that in order to fall within Section 76A a party must be able to demonstrate that there is an aspect to the dispute between the parties which the Tribunal has no power to resolve. That aspect could be the fact that there is a likelihood of an order for payment of more than the jurisdictional limit, or the actual possibility of the need for an order which the Tribunal has no statutory power to make (such as the rectification of a lease which is not consented to by the parties). Section 76A is not available in circumstances where nothing has been raised to indicate that the needs of the parties cannot be addressed within the parameters of Sections 72, 72AA and 73. Apart from the alleged complexity of the matter, nothing relevant has been put to me in this regard, and so I hold that the threshold set by Section 76A (2)(a) "may be more effectively and appropriately dealt with in the Supreme Court" has not been satisfied. 18 I do note that the 9 September 2005 affidavit of Mr Biber raises the fact that Mr Sarker has not complied with Patten AJ's order for the repayment to WBH of an amount of $10,000.00. No specific order is sought in this regard in the application before me, but if that order remains alive, that does appear to be a matter in respect of which this Tribunal cannot make any enforceable interim order. That, however is not of itself a matter of sufficient moment to change my view, and in any event, whatever disadvantage WBH may suffer in this regard can be adequately addressed by an order under Section 72A at the conclusion of the hearing of the substantive matters. 19 It follows that I do not have to consider the Section 76A(2)(b) question: - "interests of justice do not require" that the matter remain in the Tribunal. 20 However I do observe that if I am wrong in holding that the Section 76A(2)(a) threshold has not been crossed, then I am still satisfied that the presence of WBH in this Tribunal, which I cannot transfer, means that the Section 76A (2)(b) indicates that the matter should be disposed of in this Tribunal. 21 The application to transfer matter 045136 is refused because I am not satisfied that it may be more effectively and appropriately dealt with in the Supreme Court, and the application to transfer matter 045137 is refused as it does not involve a question of unconscionable conduct and I have no power to transfer such a matter. I direct that both matters be listed for further directions on 20 April 2006 at 10.30am. I do not propose to decide the question of costs of this application, that can be left to the end of the hearing of the substantive matters.