CITATION: Daimantis v Woods [2008] NSWADT 204 DIVISION: Retail Leases Division APPLICANT Konstantinos Daimantis PARTIES: RESPONDENT Ken Woods FILE NUMBER: 085086 HEARING DATES: 29 May 2008 12 June 2008 SUBMISSIONS CLOSED: 12 June 2008 DATE OF DECISION: 24 July 2008 BEFORE: Fox R - Judicial Member MATTER FOR DECISION: Interlocutory matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: Moreno v Stratis Promotions Pty Limited [2003] NSWCA 376 APPLICANT In Person REPRESENTATION: RESPONDENT Mr Tregenza ORDERS: Application dismissed, no order as to costs. REASONS FOR DECISION 1 This application came before me for urgent interim orders on 1 May 2008. It was made by the Applicant in person. It was clear that he is an undischarged bankrupt, but he asserted to me that he had permission from ITSA to trade on a cash basis. His application was that he not be locked out of premises at 7/59 Moxon Road, Punchbowl. He asserted that the rent was always paid on time. 2 The Respondent did not appear personally, but sought by letter to rely on the terms of the lease, which purported to be a commercial lease, for use of the premises as an aluminium manufacturing facility. The Lessee was Aluminco Pty Limited a company which was deregistered on 22 July 2007. During the hearing I made contact by telephone with Mr Akpinar, the managing agent, but he in reality took the matter no further than that which was in his correspondence to the Tribunal. One of these letters which was placed before me by the managing agent referred to the history of late payment of the rent for the last months of 2007 and the first month of 2008. This was, of course, well after the Lessee company had ceased to exist. The last comment made as point number 16 in the letter of 29 April 2008 stated:- "Rent is currently up to date." 3 The Applicant said that he was the occupant, and he was paying the rent. 4 His further submissions to me were that he now used the premises as showroom for aluminium windows and storage for parts of those windows. That, in my view, fell within the schedule of the Retail Leases Act as:- "building supplies shop". 5 I went on to note:- "I am not satisfied that the Applicant is the Lessee, nor am I satisfied that he as a person is able to make this application because he is an undischarged bankrupt. He says that he has permission from ITSA to trade. That will have to be proven, however, in the interim, so long as he today pays the rent of $1,300.00, the landlord's proposed action to terminate the occupancy is stayed until 12:00 29 May 2008". 6 I went on to direct that the Applicant was to allow the agent entry to inspect the premises. 7 On 29 May 2008 Ms Goodchild appeared for the Respondent, and the Applicant again appeared in person. She again drew my attention to the Applicant's personal status, and challenged the jurisdiction. Her challenge was based only on the terms of the lease, and offered me no other evidence. The permitted use is shown to be "aluminium fabrication". In my view that submission gave insufficient attention to the clearly expressed views of Barret J in Moreno v Stratis Promotions Pty Limited [2003] NSWCA 376. Once it is clear that the premises are not used for the purpose described in the lease, the use has to be construed from the agreement of the parties. Thus, if a lease is for a non-scheduled purpose, but the occupant changes the use to a scheduled purposes, it seems to me that when the Lessor becomes aware of that change use, and does nothing to stop it, the premises, at that time, fall within the Act. 8 Incidentally on much the same basis of acknowledgement by the Lessor, it seemed to me to be at least a prospect that, once the Lessor had become aware of the deregistered status of the Lessee, and continued to accept the rent, that that acceptance amounted to an acceptance of an assignment of the lease to the Applicant. An alternative seemed to me to be that the operation of the s3 definition of "retail lease" came into play to create a new (statutory) retail lease to which s16 might be applied to bring about a 5 year term. 9 I gave the Applicant leave to file and serve further evidence in relation to the jurisdiction issue. Obviously, no matter what might be the personal status of the Applicant, if on its proper construction, the use of the premises falls outside the schedule, I have no jurisdiction. 10 On 12 June 2008 I was given an Affidavit of Easin Akpinar sworn 6 June 2008, which had been served on the Applicant. That Affidavit, amongst other things, established the zoning of the land to be light industrial B, and annexed a number of photographs of the inside of the premises. 11 I do not believe that the zoning of the land, although it may be relevant, is determinative of the issue before me. I can conceive of a situation where a showroom occupies so much of the space of a light industrial factory that, despite the fact that it is a factory where the goods on display are manufactured, the premises would still be a shop for the sale of the displayed goods. 12 The photographs placed in evidence before me were, in my view, decisive. They show the exterior to be a lock up factory closed by a roller shutter. There are no external display facilities. This, of itself, of course does not resolve the issue, because the matter which I must decide is the predominant use of the premises, not their appearance. However, the photographs of the inside of the factory show it plainly to be just that, a factory for the assembly of aluminium profiles. There is no display area at all, and I could see no actual displays. 13 When pressed, the Applicant admitted that there was a showroom, possibly quite close to the premises, in Canterbury Road, and that the space under consideration was used for the storage of windows and profiles. That admission takes the matter outside of the proposed schedule use:– "building supply shop". 14 It follows that I have no jurisdiction and the application is dismissed. 15 Mr Tregenza, I think quite appropriately, did not press his application for a costs order, and I make none. 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