Stefopoulos v Manikas [2004] NSWADT 57

CITATION: Stefopoulos v Manikas [2004] NSWADT 57 DIVISION: Retail Leases Division APPLICANT PARTIES: Alex Stefopoulos RESPONDENT Dimitri Manikas & Georgina Manikas FILE NUMBER: 035064 HEARING DATES: 10/03/2004 SUBMISSIONS CLOSED: 03/10/2004 DATE OF DECISION: 03/19/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783 CASES CITED: Prasad & Anor -v- Fairfield City Council [2000] NSWADT 164 R v Young [1999] NSWCCA 166 APPLICANT REPRESENTATION: M Spry, barrister RESPONDENT J Pappas, barrister ORDERS: Date of Orders: 10 March 2004; I determine the objection to jurisdiction to hear the claim again the Respondents, and, in my view, the proceedings ought to be determined.

1 This is an application brought by Mr. Alex Stefopoulos ("the Applicant") in relation to a retail shop lease ("the Lease") for premises located at 15 Monaro Street, Queanbeyan, ("the Premises"). The registered proprietors of the Premises are Mr. Dimitri Manikas and Ms. Georgina Manikas ("the Respondents"). The Premises were used as a takeaway food shop known as Queanbeyan Takeaway. 2 In his application to this Tribunal filed on 20 June 2003, the Applicant sought orders in the following terms: "1. An order declaring that clauses 6(4), 6(6), 6(9) or the lease otherwise required the lessee to pay monies in respect of the capital costs of the building, the lease is void for being inconsistent with section 23 of the Act; 2. An order declaring that the lessor is and was liable to undertake the works stipulated in Notice Relating to Breaches of the Food Act 1989 and Food Regulations 1997 (Notice Number 2000038) dated 20 June 2000 issued by the Queanbeyan City Council; 3. An order that the lessor pay the lessee reasonable compensation for the lessor's breach of section 34(l)(d) of the Act; 4. An order that the lessor pay to the lessee damages for the lessee's loss of its business." 3 There is general agreement in regard to the events that lead to this application. It is common ground that the Applicant and the Respondents entered the Lease on 24 November 1998, that the Lease is stated as commencing from 1 September 1998 for a total period of 10 years, including options. The Applicant had occupied the Premises for some 10 years prior to the entry into the Lease. It is also common ground that the Respondents re-entered the premises on 11 September 2000. 4 The hearing in these proceedings commenced on 10 March 2004. At that time, Mr Spry, counsel for the Applicant, quantified the amount sought by the Applicant under proposed orders 3 and 4 at $132,503. 5 Mr Pappas, counsel for the Respondents, raised a question of jurisdiction for preliminary determination. Mr Pappas argued that the Tribunal has no jurisdiction to hear the matter as the orders sought are not within the powers conferred by the Retail Leases Act 1994 ("the Act"). He argued that the Tribunal has no power to award the amounts that the Applicant seeks. 6 Mr Pappas' argument is essentially that the Tribunal is creature of statute and has no inherent power to determine retail tenancy claims. Its powers are derived from its enabling statute. It must find its power in the express language of the statute. The jurisdiction relevant to this dispute is set out in section 70(a) of the Act. If that section does not provide for the jurisdiction than the Tribunal is not able to hear the matter. 7 Mr Pappas argued that the Applicant has sought an order for compensation for the Respondents' breach of section 34(l)(d) of the Act however the Tribunal only has power to consider a claim for compensation if it is brought under section 70(a)(x) or as part of claim in relation to unconscionable conduct. It is common ground that the Applicant does not seek to rely on either basis for this application. He further argues that the jurisdiction provided by section 70(a)(i) of the Act does not extend to a claim for compensation for a breach of section 34(l)(d) or for damages for the Applicant's loss of his business. He argues that the word "being" in the section 70(a) definition of a retail tenancy claim is clearly intended to limit the definition to those items included in sub-paragraphs (i) to (x) of section 70(a). Accordingly, the matter would need to be heard by a court of appropriate jurisdiction and this application should be dismissed. 8 In support of his application, Mr Pappas referred to views expressed by Judicial Member Davidson in the matter of Prasad & Anor -v- Fairfield City Council [2000] NSWADT 164 at paragraph 29 of the decision: "The words used in section 70 of the Act are words which grant jurisdiction to the Tribunal to hear the types of claims referred to in them. … section 70 obviously contains the delineation of the jurisdiction of the Tribunal and section 72 obviously gives the Tribunal the power to make particular orders to more appropriately exercise that particular jurisdiction." 9 Mr Pappas concedes that section 72 of the Act provides the Tribunal with power to order a party to the proceedings to pay money to a person specified in the order, by way of debt, damages or restitution. However, he argues that, as observed in Prasad, section 72 does not provide the Tribunal with jurisdiction. It is merely a mechanism to exercise the jurisdiction granted under section 70. 10 Mr Pappas also concedes that the Tribunal has proceeded on the assumption that it has the power to award damages and has made orders to that effect in numerous matters. Nevertheless, if the Tribunal does not have the power to award damages, it matters not that it has previously done so. He argued that it is better to be ultimately right than consistently wrong. 11 Unsurprisingly, Mr. Spry argues that the Tribunal has jurisdiction to hear the application because the applications for compensation and damages fall within the definition of a retail tenancy claim as defined by section 70(a)(i) of the Act. The other orders that the Applicant seeks are a declaration of the rights, obligations and liabilities of the parties under a lease. This clearly falls within the bounds of section 70(a)(ix) of the Act. Mr Spry further argues that in any event, even if the claims for compensation and damages do not fall within section 70(a)(i) of the Act, once the Tribunal has jurisdiction to determine part of the claim, it is then able to determine the remainder of the claim. 12 Mr Spry refers to the definition of "retail tenancy dispute" in section 63 of the Act and argues that that expression is broad enough to include a claim for damages and compensation. A "retail tenancy claim" is a claim in connection with a liability or obligation with which a "retail tenancy dispute" is concerned. He submits that the combination of these terms is sufficient to bring the application within the Tribunal's jurisdiction. 13 Mr Spry also referred to the views expressed by the Judicial Member Davidson in Prasad where he stated at paragraph 32: "It follows accordingly from that that the aspect of a term of the lease must, in my view, as an appropriate matter, be determined factually and in the light of the whole of the evidence in this particular matter and there is ample power to give effect to that in the Act itself either by awarding a claim for damages, or making an appropriate declaration, or dealing with it by way of other orders. The restriction in section 72, as stated above, is not reflected in section 70 which is the jurisdictional section. Section 72 is ancillary to section 70 and simply refers to the casting of the orders after the claim is heard." 14 Mr Spry argues that the Tribunal is not obligated to adopt the views expressed by Judicial Member Davidson in Prasad but it should do so. He urged the Tribunal to read the Act as a whole, not in the restrictive manner urged by Mr Pappas, and to conclude that it has jurisdiction to determine the application. Applicable legislation 15 As indicated above the Applicant seeks a declaration that certain provisions contained within the Lease are void for being inconsistent with section 23 of the Act. Section 23 provides: "23 Capital costs not recoverable from lessee A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of the capital costs of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building." 16 The Applicant also seeks an order for compensation relating to an alleged breach of section 34(l)(d) of the Act. Section 34(l)(d)provides: "34 Lessee to be compensated for disturbance (1) A retail shop lease is taken to provide that if the lessor: … (d) fails to take all reasonable steps to prevent or put a stop to anything that causes significant disruption of, or which has a significant adverse effect on, trading of the lessee in the shop and that is attributable to causes within the lessor's control … and the lessor does not rectify the matter as soon as reasonably practicable after being requested in writing by the lessee to do so, the lessor is liable to pay the lessee reasonable compensation for any loss or damage (other than nominal damage) suffered by the lessee as a consequence." 17 The expression `retail tenancy dispute' is defined in section 63 of the Act. Section 63 falls within Part 8 of the Act which is headed "Part 8 - Dispute resolution". That section relevantly provides: "63 Interpretation (1) In this Part: retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates. Tribunal means the Administrative Decisions Tribunal of New South Wales established by the Administrative Decisions Tribunal Act 1997." 18 The expression `retail tenancy claim' is defined in section 70 of the Act as follows: "Division 3 - Determination of claims by Administrative Decisions Tribunal 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." 19 The powers of the Tribunal in relation to retail tenancy claims are set out in section 72 of the Act as follows: "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, (c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or (ii) surrender possession of specified premises to another person, or (iii) assign his or her or its rights under a lease to a specified person, or (iv) do or perform, or refrain from doing or performing, any specified act, matter or thing, (d) an order granting a party to the proceedings relief against forfeiture, (e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease, (f) an order: (i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or (ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or (iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, (g) such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)-(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties. (2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect. (3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section. (4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so." 20 The definition of `retail tenancy claim' contained in section 70 of the Act was amended by the Retail Leases Amendment Act 1998 and expanded by the Statute Law (Miscellaneous Provisions) Act 1999. Those amendments significantly increased the scope of a retail tenancy claim and the Tribunal's power in relation to such claims. Prior to the amendments, section 70 provided: "Division 3—Determination of retail tenancy claims by Commercial Tribunal Meaning of "retail tenancy claim" 70. In this Division: "retail tenancy claim" means any of the following claims in connection with a liability or obligation with which a retail tenancy dispute is concerned: (a) a claim for the payment of a specified sum of money; (b) a claim for relief from payment of a specified sum of money; (c) a claim for the doing of specified work or the provision of specified services." 21 Prior to the amendments, section 72 provided: "Jurisdiction and powers of Tribunal 72. (1) The Tribunal has jurisdiction to hear and determine a retail tenancy claim lodged with the Tribunal under this Part. (2) In proceedings on such a claim, the Tribunal is empowered to make such one or more of the following orders as it considers appropriate: (a) an order that a party to the proceedings pay money to a person specified in the order; (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person; (c) an order that a party to the proceedings do any specified work or perform any specified service. (3) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect. (4) The Tribunal may impose such conditions as it considers appropriate when making an order under this section. (5) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so. (2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court. (3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned. (4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so. (5) This section does not apply to proceedings by way of an appeal. (6) A court may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section for the transfer of proceedings to the Tribunal to have full effect." Decision as to the jurisdictional issue 22 The question posed by Mr Pappas was specifically addressed by Deputy Chairman Davidson in the Commercial Tribunal on a notice of motion in the matter of Oxley & Peroni v Imperial Charter Pty Ltd (1996) NSW ConvR ¶55-783). Oxley was determined prior to the amendments to sections 70 and 72 of the Act, however the Deputy Chairman undertook a thorough analysis of the legislation as it then stood and this provides a useful starting point for any analysis of the Act in its present form. 23 In Oxley the Deputy Chairman stated: "THE TRIBUNAL'S JURISDICTION: DAMAGES [T]he Tribunal has such jurisdiction as is conferred upon it by or under an Act. The Tribunal has jurisdiction under a number of Acts ... Those Acts delineate the jurisdiction of the Tribunal. In respect of the retail tenancy application the Act conferring jurisdiction on the Tribunal, that is the Retail Leases Act 1994, must be interpreted. … Part 8 of the Act is headed "DISPUTE RESOLUTION". In Part 8 there are three Divisions; those Divisions are headed "Division 1 - Preliminary", "Division 2 - Mediation" and "Division 3 - Determination of retail tenancy claims by Commercial Tribunal". (these Divisions are then set out in full) … That congeries of Divisions are interlinked; each Division refers to a retail tenancy dispute. However, a retail tenancy claim for a specified sum of money is on its face narrower than a retail tenancy dispute: see Phillips v Acsai Commercial Tribunal of New South Wales, Dr C Rossiter presiding, 3 May 1996, unreported at 15. On its face a claim for a specified sum of money is a type of claim; a species of claim having a particular character. The word specified is derived from the Latin word species having the meaning of a particular kind or sort. ... The character of the claim is that of a precise or defined sum of money ... That is the ordinary meaning of specified sum; that ordinary meaning does not embrace a claim for unliquidated damages. Accordingly it is stated in New South Wales Conveyancing Law and Practice Vol 2 at 31, 801 that "there is at least considerable doubt whether the Tribunal has jurisdiction to make orders for damages" and in Redfern and Cassidy, Australian Tenancy Practice and Precedents Bulletin, August 1994 at 17 that the Act does not confer jurisdiction upon the Tribunal in respect of a "claim for unliquidated damages." However, are the words "specified sum" ill chosen? Are those words mistakenly used? If those words are mistakenly used is the Tribunal obliged to give effect to that mistake? Section 63 of the Act defines retail tenancy dispute for the purposes of the whole of Part 8, each of the three Divisions. A claim for damages is within that definition; the source of the damages is the retail shop lease and the use and occupation of the retail shop to which the lease relates ... Coming to Division 3. Firstly s75(2) provides for the general principle "that retail tenancy disputes should be dealt with by the Tribunal rather than by a court". Secondly the terms disputes and claims are interchangeably used: see ss74, 75 and 76. Section 34(2) of the Interpretation Act 1987 provides that the second reading speech made to a House of Parliament by a Minister when introducing an Act may be considered if capable of assisting in the ascertainment of the meaning of that Act. That provision permits that extrinsic material to be used to; (1) identify the purpose of an Act or the mischief with which the Act was intended to deal and (2) construe or interpret the meaning of words in the Act: Pearce and Geddes Statutory Interpretation in Australia 4th ed (1996) at 50 et seq. In Hansen v Comptroller - General of Customs Court of Criminal Appeal, 1 March 1996 unreported it is stated at 15:- "The use of extrinsic materials is not limited to the resolution of ambiguities, the elucidation of obscurities or the rejection of absurd or unreasonable results. It suffices if it is capable of assisting in the ascertainment of the meaning of the provision: s15 AB of the Acts Interpretation Act 1901 [sic Cth] and Re Gardner Smith [sic 1986] 66 ALR 377 at 383, 384." However, that statement appears to be too broad. It is stated in Catlow v Accident Compensation Commission (1989) 63 ALJR 619 at 622:- "Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. .... It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material." In Mills v Meeking (1990) 169 CLR 214 it is stated at 223:- ".... there is no need to have resort to extrinsic material; the provisions may be given their ordinary grammatical meaning." That means that good reasons to resort to the extrinsic material must exist ... In the present case there are good reasons to resort to the second reading speeches. Firstly, Part 8 of the Act enacts a general principle that retail tenancy disputes are to be dealt with by the Tribunal; that is inconsistent with a provision in the Act limiting the Tribunal's jurisdiction to precise and defined amounts. Secondly, Part 8 of the Act is not consistent and harmonious. Regard must be had to Part 8 as a whole: Cooper Brookes (Wollongong) Pty Ltd supra per Gibbs C J at 305. In the second reading speech when introducing the Act in Parliament on 20 April 1994 the Honourable R F Chappell M P stated that if "mediation is unsuccessful, the parties will seek resolution through the court system". Resolution by mediation and court proceedings included claims for damages. The Minister preferred court proceedings to Tribunal proceedings. However, in the second reading speech on 13 May 1994 the Honourable R F Chappell M P introduced in Parliament amendments corresponding to Division 3 of Part 8 of the Act. By then policy had changed; so far as possible the Tribunal was to have the jurisdiction conferred upon the courts. He stated in that speech in respect of those amendments that "preference will be given to having the Tribunal, rather than a court, determine an order." The Minister stated that the "tribunal will not be a rent determining body; it will be a body to resolve disputes concerning the liabilities or obligations of the parties to a lease.": New South Wales Parliamentary Debates Hansard 20 April 1994 at 1547, 1548, 1549 and 13 May 1994 at 2641, 2642, 2643. Those second reading speeches point to a legislative intention to equate the jurisdiction of the Tribunal to the jurisdiction of the courts to award sums of money whether those sums of money have the character of precise and defined sums of money or not; liquidated claims and unliquidated damages. In the Tribunal's view the provisions of the Act when looked at in conjunction with the second reading speeches lead to the conclusion that the words "specified sum" in s70 of the Act are ill chosen and mistakenly used. Those words are used by the legislature in ss3 and 30 of the Consumer Claims Tribunals Act 1987. The words "specified sum" in that Act embrace claims for damages: W.D. & H.O. Wills (Australia) and Another v Consumer Claims Tribunal of New South Wales and Another, Ireland J 19 October 1995 unreported.... To remedy that mistake a strained interpretation of the words "specified sum" is necessary. A purposive construction is necessary: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 per McHugh JA, as he then was, at 421 et seq. When a mistake in an Act has been made "the canons of construction are not so rigid as to prevent a realistic solution in such a case": Cooper Brookes (Wollongong) Pty Ltd, supra, per Gibbs C J at 304. A proper function of the purposive approach is to give effect to the identified legislative purpose: Kingston, supra, per McHugh J A, as he then was, at 422, 424. However, what construction in conformity with the Act of the words "specified sum" gives effect to the above identified purpose of the Act? Section 72 of the Act refers to lodgement; the Tribunal has jurisdiction to hear a claim lodged with the Tribunal. That suggests that the words "specified sum" in s70 of the Act refer to the formal application lodged with the Tribunal; the word "claim" is appropriate to that situation because a claim is apt to describe what a person seeks: The Macquarie Dictionary, supra, at 347; The Concise Oxford Dictionary, supra at 216. That means that the jurisdiction of the Tribunal is generally over retail tenancy disputes as defined in s63 of the Act where an order within the terms of s72 of the Act may be made. That excludes for instance claims for recovery of possession, claims for relief against forfeiture, claims for rectification, and claims for declaratory relief. Claims by guarantors are excluded because guarantors are not parties to the lease: s3 of the Act. However, claims for damages are not excluded. Returning to the specification of the sum of money in the application to the Tribunal. In TCN Channel Nine v AMP (1982) 42 ALR 496 it is stated at 503: "In our view, the word 'specified' is used in the sense of stating in detail or with particularity. To specify the shareholding or loan interests in the certificate requires more than a mere statement that the holder of the certificate is authorised to hold shareholding or loan interests in the company concerned." On the above view that is what s70 of the Act is aimed at achieving. Accordingly, the Tribunal is of the view that the Tribunal has jurisdiction to determine each of the claims for damages." 24 I provided each of the parties with a copy of the decision in Oxley and gave Mr Pappas and Mr Spry an opportunity to make submissions in relation to its relevance to these proceedings. Mr Pappas submitted that the Deputy Chairman wrongly determined the issue and his decision should not be followed. He cautioned against the strained approach to interpretation of the Act that the Deputy Chairman adopted. 25 Mr Pappas referred to the views expressed by Spigelman CJ in R v Young [1999] NSWCCA 166 where he stated at paragraph 5 of his judgement: "The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say." 26 He argued that the words of the statute are clear and should be applied. In contrast, Mr Spry urged the Tribunal to adopt a similar approach to that adopted in Oxley. 27 In my view, it is significant that the Act has been amended since the decision in Oxley. The Deputy Chairman specifically referred to the Tribunal's lack of power in several areas including recovery of possession, claims for relief against forfeiture, claims for rectification, and claims for declaratory relief. The 1999 amendments specifically address these issues and the relevant power is now provided for by section 70 of the Act. Section 70(a)(i) is in identical terms to that of section 70(a) as it existed prior to the amendments. It was open to the legislature to amend the Act to override the findings in Oxley that the Tribunal has jurisdiction to determine claims for damages, but it did not do so. 28 While I appreciate the importance of the principle espoused by Spigelman CJ in R v Young, I am nevertheless satisfied that Oxley was correctly decided. Accordingly, it is my view that the Tribunal has jurisdiction to determine claims for damages. I do not agree with Mr Pappas' argument that the Tribunal's power to award compensation is limited to claims pursuant to section 70(a)(x) of the Act or unconscionable conduct claims. In my view section 70(a)(i) should not be given the narrow interpretation that Mr Pappas urges. 29 I am comforted by the views expressed by the learned author of Lang's Commercial Leasing in Australia (CCH) at paragraph [29-130] who states: "There are severe limits on the scope of the Tribunal's jurisdiction which precludes it from determining many aspects of disputes relating to retail leases. Many of those deficiencies have been cured by amendments to sec 72, which operate from 1 March 1999. Some decisions of the Tribunal and the Supreme Court have considered these aspects and the following is a summary of the position as reflected in those decisions in light of the amendments to sec 72: 1. The Tribunal's jurisdiction relates to liabilities and obligations, under a retail shop lease, of the parties and former parties to the lease (Jarre Pty Ltd v Vumbaca (1998) NSW ConvR ¶55-832). 2. That includes claims for rent, outgoings and interest due for late payments (¶29-150). It also enables the Tribunal to interpret a rent review clause to determine the amount of the rent (SO Lovely Foods Pty Ltd v Macquarie Bank Ltd, Commercial Tribunal, 28 March 1996, ¶29-150). 3. The Tribunal can determine claims for compensation under sec 34, for which it has specific statutory jurisdiction. 4. Claims against guarantors were beyond the Tribunal's jurisdiction, because a guarantor is not a party to the lease (definition of ''party'', sec 3). That has now been cured by amendment (sec 71(3)). 5. The Tribunal had no jurisdiction to make an order for possession in respect of the leased premises. Claims for recovery of possession had to be taken (usually) in the Supreme Court, unless the lessor took action for physical recovery of possession. The Tribunal may make an order that a party to the proceedings surrender possession to another person (sec 72(1)(c)(ii)), which presumably covers an order for possession. 6. After some doubt, it was decided that the Tribunal does have the jurisdiction and power to award unliquidated damages (Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW ConvR ¶55-783). That has now been confirmed in the legislation(sec 72(1)(a)) and also to make an order for restitution. 7. The Tribunal did not have jurisdiction to award equitable remedies or to entertain cross-claims or defences based on equitable entitlements or remedies. However, under the legislative amendments, since 1 March 1999, the Tribunal may: (a) order that a party to the proceedings do or perform, or refrain from doing or performing, any specified act, matter or thing (sec 72(1)(c)(iv)). ie specific performance or injunction; (b) grant relief against forfeiture (sec72(1)(d)); (c) order rectification of a lease, but only by consent of the parties (sec 72(1)(e)); (d) make declarations (as specified in sec 72(1)(f))." 30 In the circumstances of this matter, the Applicant has quantified his claim and therefore the items identified in Orders 3 and 4 are claims for the payment of specified sums of money is referred to in section 70(a)(i). The orders that are sought are accordingly, for those reasons, available to the Applicant. The items identified in Orders 1 and 2 fall within the provisions of section 70(a)(ix) of the Act. Accordingly, those orders are also available to the Applicant. 31 I, accordingly, determine the objection to jurisdiction to hear the claim against the Respondents and, in my view, the proceedings ought to be determined.