TRUST COMPANY OF AUSTRALIA LTD v SKIWING PTY LTD [2006] NSWCA 387

Reported Decision : 68 NSWLR 366

New South Wales Court of Appeal

CITATION: TRUST COMPANY OF AUSTRALIA LTD v SKIWING PTY LTD [2006] NSWCA 387

HEARING DATE(S): 14 November 2006

JUDGMENT DATE: 21 December 2006

JUDGMENT OF: Handley JA at 1; Basten JA at 2; McDougall J at 77

DECISION: (1) Dispense with the filing of a summons for leave to appeal from the decision of the Appeal Panel of the Administrative Decisions Tribunal made on 7 December 2005; (2) Grant leave to appeal; (3) Direct that the Notice of Appeal filed on 30 December 2005 be treated as filed pursuant to leave; (4) Allow the appeal and set aside the order of the Appeal Panel; (5) In lieu thereof:; (i) allow the appeal to the Appeal Panel; (ii) set aside the order of the Administrative Decisions Tribunal made on 10 August 2005, and; (iii) remit the matter to the Tribunal for it to determine the applications under the Retail Leases Act according to law; (6) Order the Respondent to pay the Appellant's costs of the appeal in this Court; (7) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

CATCHWORDS: JURISDICTION – appeal from Appeal Panel of Administrative Decision Tribunal – whether decision was interlocutory – whether leave required – whether notice of appeal incompetentRETAIL LEASE – statutory interpretation – Retail Leases Act 1994 (NSW) ss 11 and 12 – whether the term "services" under s 12 included "outgoings"RETAIL LEASE – Retail Leases Act 1994 (NSW) s 30 – whether calculation of contribution to outgoings on proportionate basis should take into account vacancy ratesRETAIL LEASE – whether contractual obligation to pay contributions to outgoings included requirement that amount claimed be "reasonable" PROCEDURAL FAIRNESS – whether Administrative Decision Tribunal erred in relying on audited statement of outgoings and cross-examination of auditor without granting party access to further documentsCOSTS – whether Appeal Panel of the Administrative Decision Tribunal was a "court" for the purposes of the Suitors' Fund Act 1951 (NSW)