Ticehurst v Cross [2005] NSWSC 574

Reported Decision : (2006) NSW ConvR 56-136

New South Wales Supreme Court

CITATION : Ticehurst v Cross [2005] NSWSC 574

HEARING DATE(S) : 14 June 2005

JUDGMENT DATE : 17 June 2005

Common Law Division JURISDICTION : Possession List

JUDGMENT OF : Studdert J

DECISION : The notice of motion is dismissed. Costs of the motion are to be costs in the cause.

LEGISLATION CITED : Retail Leases Act, ss 63, 68, 75

CASES CITED : Oriental Carpet Department Store v Supacenta Pty Limited [2003] NSWSC 783

Maurice Patrick Ticehurst (1st Plaintiff) PARTIES : Beverley Anne Ticehurst (2nd Plaintiff) David Michael Cross (Defendant)

FILE NUMBER(S) : SC 14106/04

P. Sibtain (Plaintiff) COUNSEL : K. Welshman (Defendant)

Cole & Butler (Plaintiff) SOLICITORS : Bamford Marcellos O'Connor (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

STUDDERT J

Friday 17 June 2005

14106/04 MAURICE PATRICK TICEHURST & ANOR v DAVID MICHAEL CROSS

JUDGMENT 1 HIS HONOUR: The applicant, David Michael Cross, is the defendant in proceedings that have been brought against him in this court by the plaintiff, Maurice Patrick Ticehurst and Beverley Anne Ticehurst. The defendant's application to which this judgment is directed is one of two applications pending in this court. The other application is an application by the plaintiffs for the assessment of damages. In the circumstances, I propose to refer to David Michael Cross in this judgment as the defendant and to Maurice Patrick Ticehurst and Beverley Anne Ticehurst as the plaintiffs. 2 By his notice of motion the defendant seeks the following orders: "1. That the Statement of Claim filed on 9 December 2004 be struck out pursuant to s 68 of the Retail Leases Act 1994. 2. Alternatively, that the Plaintiff's Statement of Claim be stayed and transferred to the Administrative Decisions Tribunal pursuant to s 75 of the Retail Leases Act 1994. 3. The Plaintiff to pay the Defendant's costs of this motion. 4. Any other order that this Honourable Court deems fit." 3 Section 68 of the Retail Leases Act provides as follows: " 68 Disputes and other matters must be submitted to mediation before proceedings can be taken (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. (2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter. (3) This section does not apply to proceedings before a court for an order in the nature of an injunction. (4) This section does not operate to affect the validity of any decision made by a court."