Kollias v Monzo Pty Ltd [2003] NSWADT 275

CITATION: Kollias v Monzo Pty Ltd [2003] NSWADT 275 DIVISION: Retail Leases Division APPLICANT PARTIES: Golfinas Kollias RESPONDENT Monzo Pty Ltd FILE NUMBER: 025131 HEARING DATES: On the papers SUBMISSIONS CLOSED: 12/12/2003 DATE OF DECISION: 12/24/2003

BEFORE: Chesterman M - ADCJ (Deputy President) APPLICATION: Jurisdiction MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 Commercial Tribunal Act 1984 District Court Act 1973 LEGISLATION CITED : Fair Trading Act 1987 Local Courts (Civil Claims) Act 1970 Supreme Court Act 1970 Trade Practices Act 1974 (Cth) CASES CITED: A Calkos Pty Ltd v Taylor Farms (Australia) Pty Ltd and Ors, Unreported, Commercial Tribunal of NSW, 9 April 1998, G Hoeben, Deputy ChairmanNew York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55 Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186 APPLICANT REPRESENTATION: C Khosravi, solicitor RESPONDENT R Bartalesi, solicitor ORDERS: Declare that the Tribunal lacks jurisdiction to entertain any claim by the Applicant for relief in so far as it is based on a provision of the Trade Practices Act 1974 (Cth)

1 In this matter, the Applicant Lessee applies under the Retail Leases Act 1994 for the award of damages and associated remedies against the Respondent Lessor. The grounds for the relief claimed are various breaches of the contract of lease and the breach of two statutory provisions, namely s 52 and s 53A of the Trade Practices Act 1974 (Cth). These respectively prohibit misleading or deceptive conduct and the making of false or misleading representations in connection with the sale or grant of an interest in land, in each case by a corporation in the course of trade or commerce. 2 As a preliminary matter, the Respondent contends that the Tribunal lacks jurisdiction to entertain these claims by the Applicant for relief under the Trade Practices Act. 3 At a directions hearing on 12 December 2003, it was ordered, with both parties consenting, that this matter should be determined by the Tribunal without holding a hearing, pursuant to s 76 of the Administrative Decisions Tribunal Act 1997. 4 At an earlier directions hearing, on 31 October 2003, I drew the parties' attention to the possibility that the Tribunal may indeed lack jurisdiction to hear claims of this nature under the Trade Practices Act or under the companion legislation of this State, namely the Fair Trading Act 1987. 5 In a subsequent letter dated 4 November 2003 from Mr R Bartalesi, solicitor for the Respondent, to Mr T Hall, counsel for the Applicant, it was asserted that the Tribunal did indeed lack such jurisdiction. A copy of this letter was forwarded to the Tribunal. In it, three authorities were cited: A Calkos Pty Ltd v Taylor Farms (Australia) Pty Ltd and Ors, Unreported, Commercial Tribunal of NSW, 9 April 1998, G Hoeben, Deputy Chairman; Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186 (in which the Commercial Tribunal's decision on the matter in issue was upheld on appeal); and New York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55. 6 No submission in response was made on the Applicant's behalf. 7 In my judgment, the authorities cited in Mr Bartalesi's letter conclude this issue in his client's favour. 8 The ruling in the first two of them was that the Commercial Tribunal, which is the predecessor of this Tribunal in exercising jurisdiction under the Retail Leases Act, lacked jurisdiction to hear claims for damages based on a breach of s 42 of the Fair Trading Act (this being the NSW equivalent of s 52 of the Trade Practices Act (Cth)). The principal grounds for this ruling, as set out by Kirby J in Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd and Ors [1999] NSWSC 186 (see paras 15 – 39), were twofold, and can be summarised as follows. 9 First, neither the Fair Trading Act nor the Commercial Tribunal Act 1984 conferred jurisdiction on the Commercial Tribunal to hear claims based on s 42 of the former Act. By contrast, jurisdiction to hear such claims clearly formed part of the general jurisdiction of the Supreme Court (under s 23 of the Supreme Court Act 1970) and had been expressly conferred on both the District Court (District Court Act 1973, s 135, inserted in 1992) and the Local Court (Local Courts (Civil Claims) Act 1970, s 12(9), inserted in 1996). 10 Secondly, the limits of the Commercial Tribunal's jurisdiction under s 71 of the Retail Leases Act 1994 to hear a 'retail tenancy claim' were set by the phrase within s 70(a) with which the definition of such a claim commences. It was and still is as follows: 'claims in connection with a liability or obligation with which a retail tenancy dispute is concerned'. Although 'retail tenancy dispute' was widely defined in s 63(1) of this Act, the definition is not broad enough to include any liability that might arise between two persons who have the relationship of landlord and tenant under a retail shop lease within the meaning of the Act. In the absence of a provision expressly conferring jurisdiction, as had been enacted with reference to the District Court, the inference to be drawn was that Parliament did not intend that the Commercial Tribunal should have jurisdiction. 11 In the third of the cases referred to by Mr Bartalesi, New York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55, at [36 – 40], it was held in the context of an application to this Tribunal under the Retail Leases Act that the Tribunal lacked jurisdiction to hear a claim by a lessee under s 51AC of the Trade Practices Act (Cth). Mr B Donald, Judicial Member, referred to arguments, put by the lessor, that (a) according to Kirby J's judgment in Taylor Farms, this Tribunal only has jurisdiction that is expressly conferred upon it by an enactment and (b) under s 86 of the Trade Practices Act (Cth), jurisdiction, so far as State courts and tribunals are conferred, is conferred only on 'courts' and this Tribunal is not a 'court'. Mr Donald's decision, upholding the lessor's argument, was however based on a third proposition, namely, that the wording of s 51AC was replicated in the proposed jurisdiction of the Tribunal under Part 7A of the Retail Leases Act to hear claims based on unconscionable conduct, and that Part had not yet commenced operation. He reserved his opinion as to whether the lessor's argument was supported by the first two propositions. 12 In my judgment, these two propositions, together with the principles laid down by Kirby J in Taylor Farms, do produce the result that the Tribunal has no jurisdiction to hear claims based on the two provisions of the Trade Practices Act (Cth) – s 52 and s 53A – on which the Applicant in this case relies. As was the case with the Commercial Tribunal, this Tribunal's original jurisdiction in applications under the Retail Leases Act depends on the express words or necessary intendment of this Act and of any other legislation purporting to confer jurisdiction. This is clear from the sections of the Administrative Decisions Tribunal Act 1997 – ss 37 and 45 – that provide for original jurisdiction to be conferred. The relevant jurisdiction is not conferred by s 86 of the Trade Practices Act (Cth), for the reasons outlined in the preceding paragraph. It is not conferred by s 71 of the Retail Leases Act because, for the reasons explained by Kirby J in Taylor Farms, it is not within the ambit of the phrase 'retail tenancy claim'. 13 There are good grounds for thinking that this is not a particularly satisfactory result, given that the Tribunal now has jurisdiction under Part 7A of the Retail Leases Act to hear claims within the broad ambit of the phrase 'unconscionable conduct'. But the existing authorities appear to me to permit no other conclusion. 14 For these reasons, I declare that the Tribunal lacks jurisdiction to entertain any claim by the Applicant for relief in so far as it is based on a provision of the Trade Practices Act 1974 (Cth).