Skiwing Pty Ltd v Trust Company of Australia Ltd [2003] NSWADT 190

CITATION: Skiwing Pty Ltd v Trust Company of Australia Ltd [2003] NSWADT 190 DIVISION: Retail Leases Division APPLICANT PARTIES: Skiwing Pty Ltd trading as Cafe Tiffany's RESPONDENT Trust Company of Australia Ltd (Stockland Property Management Ltd) FILE NUMBER: 035036; 035053; 035066 HEARING DATES: 30/07/2003 SUBMISSIONS CLOSED: 08/19/2003 DATE OF DECISION: 08/28/2003

BEFORE: Donald BG - Judicial Member APPLICATION: Claim for compensation for pre lease misrepresentations - Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Retail Leases Act 1994 Blair v Curran (1939) 62 CLR 464 CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 Commonwealth of Australia v Sciacca (1988) 78 ALR 279 APPLICANT REPRESENTATION: A Tonking, barrister RESPONDENT J Ratanatray, solicitor ORDERS: 1. Strike out application dismissed.; 2. Applicant to amend Applications as directed.; 3. Matters listed on 18 September 2003 at 12 noon.

1 This is a common interlocutory application in Applications 035036, 035053,035066, being applications by the Lessee against the Lessor in relation to disputes arising under the Lease between them in respect of shop C19 in the Imperial Arcade in Sydney. The Lessor seeks to strike out all 3 Applications. 2 In a previous Application 025117 ("the Sign Claim") the Lessee claimed that the Lessor had breached its entitlement to display a sign advertising its business in breach of its rights under the Lease. That matter was not formally pleaded, as is common with proceedings in this jurisdiction. However the formulation of that claim both in the principal application and in the urgent interim application, as well as in the subsequent submissions filed by the Lessee Applicant and by the Lessor Respondent were all quite clearly confined to a single issue between the parties concerning the entitlement to display advertising signs. 3 The Tribunal ruled in the Lessee's favour at [2002] NSWADT 278 by ordering that the Lessee be entitled to display signs and reserved its decision as to whether the Lessee could establish any basis for compensation flowing from the breach. 4 By these three further Applications the Lessee brings claims relating to other issues between the parties: (a) 035036 — The Balcony Claim, is a claim expressed to be for compensation under s.10 of the Retail leases Act that the Lessee was induced to enter into the Lease on the basis of a representation that the Lessor would include plans for an external balcony in a forthcoming renovation of the Shopping Centre. (b) 035053 — The Tables and Chairs and Re-location Claim, claiming a right for the Lessee to locate certain tables and chairs in the common areas of the Shopping Centre and for loss caused by the issue of certain re-location notices under the Lease. (c) 035066 — The Renovation claim, claiming loss for non-disclosure of renovation and loss caused by a renovation. 5 The Lessee in drafting the Applications is represented by its principal, Mr Stojanoski who has expressed the three claims in an expansive and imprecise manner but substantially to the above effect. 6 The Lessor seeks first to strike out the three further claims and failing that to have them consolidated into a single claim subject to the Tribunal's $300,000 limit of jurisdiction. 7 The strike out application asserts that by reason of an Anshun estoppel, res judicata or issue estoppel the Lessee is precluded from bringing the claims because of the decision of the Tribunal in 025117, the Sign Claim. The strike out also asserts the claims are limitation barred by s.71(2) of the Act. 8 Having heard the submissions of the Lessor as to Anshun estoppel and res judicata, the Tribunal did not call on the Lessee and indicated that it was not satisfied that on either of those two principles the three claims should be struck out. In relation to issue estoppel the Tribunal permitted the Lessee to file further submissions with a reply by the Lessor. 9 The reasons for the Tribunal rejecting the strike out application on the ground of Anshun estoppel or res judicata may be simply put. These are principles which seek to ensure that disputes between parties once determined cannot be re-opened. They seek to bring finality to legal proceedings. 10 Whereas res judicata prevents a Court or Tribunal considering again the particular matter which has been the subject of a decision in litigation between parties, the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3, extend the requirement of finality to other issues between parties which were directly related to the matter in the decided litigation such that they properly belonged to the subject of that litigation. The High Court held that an estoppel arose because the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it in relation to the first action. 11 The Tribunal is firmly of the view that even though the issue in Application 025117 arose from the lease relationship between the parties, it was specifically confined to the question of whether the denial of a right to display signs was in breach of the lease relationship. These three later claims are based on representations and matters which bear no factual relationship to the placing of the sign. None of the three subsequent claims constituted the subject matter between the parties that has been resolved by the Tribunal's decision in 025117 such as to be barred by res judicata. Nor are they so properly related to the first claim that it could be said they should have been raised in relation to and as part of that claim so as to give rise to an Anshun estoppel. 12 The next question is whether any of the subsequent three claims are barred by an issue estoppel. This is a further principle seeking to ensure finality and non-duplication of litigation such that where a particular issue has been specifically addressed and determined in litigation between parties, it cannot be re-litigated. The most authoritative statement of the principle is in Blair v Curran (1939) 62 CLR 464, per Dixon J., 531-2:- A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties…The estoppel covers only those matters which the prior judgment…necessarily established as the legal foundation or justification of its conclusion,… Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. (Approved in Anshun at 36 ALR pp8-9; followed by the full Federal Court in Commonwealth of Australia v. Sciacca (1988) 78 ALR 279.) 13 The Lessor's claim here is that in Application 025117 the Tribunal has specifically made a finding on the question of whether representations were made and relied upon between the parties in the entering into the current lease. While that matter was specifically in relation to representations concerning the right to locate the advertising sign, in para 9 of the decision, [2002] NSWADT 278, the Tribunal referred to the terms of the Lessor's and Lessee's Disclosure Statements exchanged between the parties prior to entering into the Lease in about March 2000 to commence 1 May 2000. 14 The Tribunal stated in general terms, having regard to the Disclosure Statements:- "The only possible conclusion on the facts was that no agreements or representations were asserted to be relied on by the Lessee other than in the Lease." This finding specifically related to representations alleged to have been relied on in entering into the Lease.