Wise Interests Pty Ltd v Trust Company Ltd [2010] NSWADT 105

CITATION: Wise Interests Pty Ltd v Trust Company Ltd [2010] NSWADT 105

DIVISION: Retail Leases Division

APPLICANT Wise Interests Pty Limited PARTIES: RESPONDENT Trust Company Limited Westfield Shopping Centre Management Co. Pty Limited

FILE NUMBER: 095212

HEARING DATES: On the papers

DATE OF DECISION: 29 April 2010

BEFORE: Fox R - Judicial Member

CATCHWORDS: Unconscionable conduct

LEGISLATION CITED : Retail Leases Act 1994

CASES CITED: Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 JV Idola Pty Limited v Patricia Mary Lovecek [2009] NSW ADT

APPLICANT P Macauley, solicitor REPRESENTATION: RESPONDENT M Deutch, solicitor

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

PRELIMINARY DECISION – UNCONSCIONABLE CONDUCT CLAIM

1 This is an application by a tenant of the Pitt Street Plaza for compensation from the landlord arising out of the redevelopment of that shopping centre. The development is ongoing, and for the purposes of this claim I assume that the alleged disturbance to the tenant's business continues.

2 The practice of this Tribunal is now quite clear, a matter alleging unconscionable conduct cannot proceed until it has been established to the satisfaction of a Judicial Member that there is a prospect of establishing the highly unethical conduct identified by Spigelman CJ in Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261. An explanation of the reasons for the practice is found in my decision of JV Idola Pty Limited v Patricia Mary Lovecek [2009] NSW ADT. As therein indicated, the end result, it seems to me, is that the assessment which I now have to carry out amounts to an appraisal of what might in other jurisdictions be described as the pleadings. That enquiry is not only to note what might be the result of the matter particularised if fully proven, but also to examine whether the Retail Leases Act 1994 (or for that matter any other law) would afford an appropriate remedy without resort to s62B, and the orders envisaged by s72AA. This follows from the Chief Justice's comments in World Best Holding, which I will quote again:- "Parliament did not intend that "unconscionability" claims could be so readily made as to the virtually take the place of retail tenancy claims. They needed to make a high standard of moral obloquy."