JV Idola Pty Limited v Lovecek [2009] NSWADT 258

CITATION: JV Idola Pty Limited v Lovecek [2009] NSWADT 258

DIVISION: Retail Leases Division

APPLICANT JV Idola Pty Limited PARTIES: RESPONDENT Patricia Mary Lovecek

FILE NUMBER: 085144

HEARING DATES: 3 September 2009

DATE OF DECISION: 2 October 2009

BEFORE: Fox R - Judicial Member

LEGISLATION CITED : Retail Leases Act 2004

CASES CITED: Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261

APPLICANT In person REPRESENTATION: RESPONDENT J Webb, solicitor

ORDERS: 1. Unconscionable conduct claim dismissed, matter to proceed as retail tenancy claim 2. Costs reserved.

Preliminary Decision – Unconscionable Conduct Claim

1 It is the practice of this Tribunal to conduct a preliminary examination of the evidence proposed to be relied upon by those who seek relief pursuant to s62B (unconscionable conduct). The reason for that practice is obvious – unconscionable conduct claims can only be adjudicated upon by Judicial Members holding the rank of Deputy President, sitting with a panel of two industry qualified advisers, whilst Retail Lease claims are dealt with by Judicial Members sitting alone. The waste of resources involved in dealing with a matter alleged to involve unconscionable conduct, which turns out to have never had a reasonable prospect of establishing that particular kind of activity, will be obvious.

2 Yet another basis for the practice of "screening" is found in the comments of the Chief Justice in Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261:- "The matters to be considered under a retail tenancy claim, turning on the contract and well-established doctrine, were intended by Parliament to continue to have considerable scope. The Parliament was careful to ensure that the amorphous and ambiguous term, "unconscionability", did not come to completely override the legal rights and obligations created by the lease relationship. Parliament did not intend that "unconscionability" claims could be made so readily as to virtually take the place of retail tenancy claims. They needed to meet a high standard of moral obloquy."