Melvic Pty Limited v MPP Holdings Pty Limited [2007] NSWSC 1433

New South Wales Supreme Court

CITATION : Melvic Pty Limited v MPP Holdings Pty Limited [2007] NSWSC 1433

HEARING DATE(S) : 5 December 2007

JUDGMENT DATE : 5 December 2007

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 5 December 2007

DECISION : The defendant's application that the proceedings be transferred to the Administrative Decisions Tribunal pursuant to s 75 of the Retail Leases Act 1994 is dismissed.

CATCHWORDS : LEASES – Retail Leases Act 1994 – application for removal of court proceedings to the Tribunal - retail tenancy dispute – meaning – necessity for existence of a genuine dispute – no genuine dispute – application refused

LEGISLATION CITED : Retail Leases Act 1994

CASES CITED : GTP Management Limited v Spa Heaven Pty Limited [2005] NSWSC 1043

Melvic Pty Limited (First plaintiff) PARTIES : Peelmont Pty Limited (Second plaintiff) MPP Holdings Pty Limited (Defendant)

FILE NUMBER(S) : SC 15944 of 2007

COUNSEL : M R Lawson (Plaintiffs) A J L Ogborne (Defendant)

SOLICITORS : Thomas Mitchell Solicitors (Plaintiffs) McDonald Johnson Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

5 December 2007

15944 of 2007 Melvic Pty Limited & Anor v MPP Holdings Pty Limited

JUDGMENT – EX TEMPORE

Introduction 1 These are proceedings commenced by summons filed in this Court on 26 November 2007. The plaintiffs (Melvic Pty Limited and Peelmont Pty Limited) are the lessors of two adjoining properties at Belmont to which I will shortly refer. The defendant (MPP Holdings Pty Limited) is the tenant of those premises from which it conducts a pharmacy pursuant to what is agreed to be a retail shop lease. 2 By their summons, the plaintiffs seek declarations that two notices to quit issued respectively by the plaintiffs to the defendant on 30 October 2007 are valid. The summons seeks in addition an order that the defendant vacate the premises the subject of the notices to quit on or before 18 December 2007. Other relief is sought including an order that the proceedings be placed in the expedition list. 3 The matter came before me today in the duty list for determination of a notice of motion filed by the defendant on 4 December 2007. By that notice of motion the defendant seeks an order that the proceedings be transferred to the Administrative Decisions Tribunal pursuant to s 75 of the Retail Leases Act 1994 ("the Act"). Alternatively, the defendant seeks an order that the proceedings be stayed pursuant to s 68 of the Act until the Registrar of the Tribunal has certified in writing that the mediation has failed or that the Court is otherwise satisfied that mediation under Pt 8 of the Act is unlikely to resolve the dispute. Background 4 Section 75 of the Act is headed "Removal of Court Proceedings to the Tribunal". Sub-section (1) provides: "(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: