Andjoy Pty Ltd v Shand [2005] NSWADT 192

CITATION: Andjoy Pty Ltd v Shand [2005] NSWADT 192 DIVISION: Retail Leases Division APPLICANT PARTIES: Andjoy Pty Ltd RESPONDENT Patricia Ann Shand FILE NUMBER: 055061 HEARING DATES: 04/08/2005 SUBMISSIONS CLOSED: 08/04/2005 DATE OF DECISION: 08/16/2005

BEFORE: Fox R - Judicial Member APPLICATION: Claim for payment of money MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: Z Bojanic, Solicitor RESPONDENT No Appearance ORDERS: Orders made 04/08/2005; 1. Pursuant to Section 72(1)(a) of the Retail Leases Act 1994 the Respondent is ordered to pay the Applicant $300,000.00

REASONS FOR DECISION 1 In these proceedings the Applicant sought an Order for the payment of money (being arrears of rent and outgoings). I was satisfied that the Respondent knew of the proceedings but had elected not to appear. I dealt with the matter ex parte. 2 The Affidavit evidence alleged an amount of rent and outgoings of $312,773.40 and interest pursuant to the relevant provisions in the lease, but the Applicant formally waived the prime amount in excess of $300,000.00 and claimed an order for $300,000.00 under Section 72 of the Retail Leases Act 1994 plus interest under Section 72A. Section 72A states:- "(1) When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid, interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect." 3 Clearly I have power to award interest, and would be ready to do so at the relevant District Court rate (see Section 72A(3)). The method of calculation of such interest, being on an ever increasing capital sum, may be a matter of some debate, however that does not arise in the circumstances, because I am satisfied that Section 73 prevents me from making an order at all. "73 The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the amount or amounts (if any) of money to be declared not to be due or owing, and (c) the value or values (if any) of the work to be done or the services to be performed, under or by virtue of the order or orders would exceed $300,000 or such other amount as may be prescribed by the regulations." 4 The Order which I might make for the prime amount, the interest claimed, or for that matter costs (if the facts allowed it) seem to me all to be encompassed within "an order or orders in respect of a particular Retail Tenancy Claim" and so cannot total more than $300,000.00. 5 Were I to grant the Application, making an Order for the payment of $300,000.00 and another Order for the payment of interest, then I am satisfied that both Orders would be a nullity because they would exceed the jurisdiction limit of the Tribunal. 6 Clearly, when the Applicant elected to stay within the Tribunal, and abandoned the amount of $12,773.00, it also abandoned any right to claim interest. 7 The Applicant, rightly in my view, made no claim for an order for costs. 8 Pursuant to Section 72(1)(a) the Respondent is ordered to pay the Applicant $300,000.00.