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." (Emphasis added) 4 Section 63 defines "retail tenancy dispute" as meaning: "Any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates." 5 It is necessary at the outset to determine whether the claim brought by the plaintiff against the defendant is a retail tenancy dispute within the meaning of the Retail Leases Act. 6 The evidence establishes that the plaintiffs leased to the defendant land comprised in Certificate of Title Folio Identifier 1/601925 known as Southside Supermarket, Inverell. The lease commenced on 3 September 2002 when it was expressed to be for a period of five years. It contained an option provision. 7 By their statement of claim the plaintiffs sought judgment for possession of the property, claimed arrears of rent and damages. The statement of claim appears to have been served on 10 December 2004 (see the affidavit of James Dwyer sworn 13 December 2004). On 29 March 2005 judgment for possession of the subject premises was entered, no defence having been filed by that date. 8 The plaintiffs' application for the assessment of damages to which I earlier referred was supported by an affidavit by Beverley Ticehurst, the second plaintiff. In her affidavit sworn on 4 March 2005 is outlined the plaintiffs' claim for damages. There is a claim for arrears of rent, there is a further claim for making good damage allegedly caused by the defendant to fixtures and fittings, and, altogether, the claim as presented by reference to the deponent's affidavit is a claim for $24,145, omitting cents. 9 The evidence establishes that the claim which the plaintiffs still seek to pursue falls within the definition of "retail tenancy dispute" under s 63 of the Retail Leases Act. Indeed, I do not understand that the plaintiffs contend otherwise. 10 Ms Welshman recognised that the relief sought in para 1 of the statement of claim is not appropriate, bearing in mind that in the absence of any defence having been filed, default judgment for possession has been entered. However, Ms Welshman submitted that the claim for damages should be struck out or, alternatively, that to the extent that such claim is pursued in the statement of claim, it should be stayed and that the proceedings should be transferred to the Administrative Decisions Tribunal under s 75 of the Retail Leases Act, which provides: "75 Removal of court proceedings to the Tribunal (1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that: (a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and (b) the interests of justice do not require that the matter be dealt with by the court. (2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court. (3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned. (4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so. (5) This section does not apply to proceedings by way of an appeal. (6) A court may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section for the transfer of proceedings to the Tribunal to have full effect." 11 Ms Welshman referred to the affidavit of her instructing solicitor, John Wilton, sworn on 13 April 2005. In that affidavit Mr Wilton deposed to the fact that there has been no mediation between the parties and no application to the Administrative Decisions Tribunal under the legislative scheme referred to earlier. 12 The plaintiffs resist the application for transfer at this late stage when the application which they are pursuing for the purposes of the assessment of damages is about to be dealt with in this court. 13 It is to be noted that s 68 of the Retail Leases Act requires that a dispute as defined may not be the subject of proceedings before any court absent the registrar's certificate as contemplated in sub-s (1) unless "the court is otherwise satisfied that mediation…is unlikely to resolve the dispute…" Moreover, s 75 of the Retail Leases Act requires that civil proceedings involving a retail tenancy dispute be transferred to the tribunal, "but only if the court is satisfied that (a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal; and (b) the interests of justice do not require that the matter be dealt with by the court." 14 Section 75(2) defines the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court. 15 Because of the provisions of s 68, the plaintiffs' outstanding claim may not proceed in this court unless this court is satisfied that mediation under the Retail Leases Act is unlikely to resolve the matters in dispute. Section 68(1) makes it plain that it is for the court to determine what the prospects of mediation would be: see as to this the decision of Young CJ in Eq in Oriental Carpet Department Store v Supacenta Pty Limited [2003] NSWSC 783 at para 15. 16 There is no evidence that the defendant would be willing to mediate, but it is his solicitor, Mr Wilton, who has raised the issue of mediation in his affidavit. Conversely, there is no specific evidence that the plaintiffs would be unwilling to mediate, but they have pursued the proceedings in this court to the point where, depending upon the outcome of the defendant's application presently under consideration, damages are about to be assessed in this court. 17 Ms Welshman has submitted that notwithstanding the history of the matter, it cannot be assumed that mediation would fail. Conversely, Ms Sibtain has submitted on behalf of the plaintiffs that the Court should conclude that a referral to mediation would be futile. 18 Whilst, no doubt, the claim still to be pursued is considered by the parties to be an important claim, the costs associated with its pursuit in the Supreme Court are likely to be disproportionate to the amount involved. For this reason alone, even if the matter remained in this court, I would have been disposed to order that it be referred to mediation if there was any possibility that mediation could prove successful. 19 Unfortunately, however, I have concluded that mediation under Pt 8 of the Retail Leases Act is unlikely to resolve the dispute between the parties. In coming to this conclusion, I am acutely conscious of the costs that remain to be incurred in this cause, as well as the costs already incurred. There may have been some possibility of mediation succeeding had it been undertaken earlier, but I consider on the evidence before the Court it is now likely to be too late for a successful mediation. There seem to me to be a number of reasons for this: (i) The current cause has progressed to the point that the plaintiffs have filed their affidavit as to the assessment of damages, and the hearing of that assessment is imminent. Indeed, I was informed it awaits only a decision on this present application. (ii) The affidavit of Mr Butler sworn on 13 May 2005 records a sorry history of disharmony between the parties, at least from October 2003 onwards. Of course, I make no finding as to the truth of allegations made against the defendant which I now record. It is asserted that the first plaintiff was assaulted by the defendant, although this is denied by the defendant, and the police took no action. It is further alleged that the defendant broke into the plaintiff's property after the plaintiffs had purported to terminate the lease and after they had resumed possession of their property. It is alleged that the defendant was responsible for illegal paintwork at the premises. There have been apprehended violence orders sought. According to Mr Butler, a complaint was made by the defendant's wife against the plaintiffs but it was dismissed when the complainant did not appear. However, again according to Mr Butler, an apprehended violence order was made in favour of the plaintiffs against the defendant. Mr Butler's expressed perception is that mediation would be unlikely to resolve the dispute, and whilst it is for this Court to assess the prospects of mediation, Mr Butler's assessment is to be taken into account. (iii) The plaintiffs have not been deterred by the issue of costs from pursuing proceedings in this court, and they have opposed the defendant's motion for transfer, notwithstanding the costs implications that may result from this. Whilst I am not at present dealing with the costs of this cause, the plaintiffs would doubtless appreciate they ought not to assume, even if they are successful in their claim for damages in this court, that they would recover costs. 20 Whilst I have concluded that mediation under Pt 8 of the Retail Leases Act is unlikely to resolve this dispute, s 75 of that statute remains to be considered, and I must have regard to s 75(2) and the general principle there defined. The plaintiffs' claim could, in my view, have been dealt with effectively in the Administrative Decisions Tribunal. That is a consideration that will have to be taken into account when this court is ultimately asked to address the costs of this cause. However, the defendant's motion was not pursued promptly upon the service of the plaintiffs' statement of claim and because of the delay in bringing this application, the progress of the cause in this court has brought it to the stage where a final hearing is imminent, in respect of which considerable costs have doubtless been incurred. In these circumstances, in addressing s 75(1)(b) of the Retail Leases Act, it seems to me that the interests of justice require that the matter remain in this court. 21 Whilst the defendant's application has been unsuccessful, I consider that the appropriate order as to costs is that they be made costs in the cause. Formal orders 22 1. The notice of motion is dismissed. 2. Costs of the motion are to be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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