Shree Sai Charan Pty Ltd v North Indian Flavour (Broadway) Pty Ltd and Bobby Singh [2011] NSWADT 95

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Shree Sai Charan Pty Ltd v North Indian Flavour (Broadway) Pty Ltd and Bobby Singh [2011] NSWADT 95 Hearing dates: 25 March 2010 Decision date: 05 May 2011 Jurisdiction: Retail Leases Division Before: P H Molony, Judicial Member Decision: 1. The application is dismissed for want of jurisdiction. 2. The applicant shall pay the second respondents costs fixed at $6,050.00 inclusive of GST. Catchwords: Retail leases - retail tenancy claim - unconscionable conduct claim - jurisdiction Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Attorney-General of NSW v Worldbest Holdings Ltd (2005) NSWLR 557 Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28 Parallel Lines International Pty Ltd v Video-drama Pty Ltd [2007] NSWADT 84 Taylor Farms (Aust) Pty Ltd v A Calkos Pty Ltd & Ord [1999] NSWSC 186 Category: Separate question Parties: Shree Sai Charan Pty Ltd - Applicant North Indian Flavour (Broadway) Pty Ltd - First Respondent Bobby Singh - Second Respondent Representation: S. Sharma, (Agent) (Applicant) R J Young, Counsel (Second Respondent) File Number(s): 105150 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1This is a retail tenancy and unconscionable conduct claim made under the Retail Leases Act 1994 by Shree Sai Charan Pty Ltd (Shree), a former tenant of shop premises at Westfield, Bondi Junction. While originally made against the lessor, Perpetual Trustee Company Limited, as first respondent, the claim was subsequently amended by withdrawing as against Perpetual Trustees, and substituting North Indian Flavour (Broadway) Pty Ltd (NIF) as first respondent. NIF is the present lessee of the premises. The second respondent is Mr Bobby Singh, whom the Applicant also claims to be a present lessee 2The retail tenancy alleges that the respondents (as present lessees) have converted Shree's equipment, fixtures and fittings at premises to their own use. 3The unconscionable conduct claim made against the respondents asserts that they engaged in unconscionable conduct by - Failing to make reasonable (or any) inquiries regarding Shree's interest in the equipment, fixtures and fittings and by electing to use it in a manner inconsistent with that interest. Failing to communicate with Shree so as to enable them to use the premises without fitting out the premises themselves. Refusing Shree access to the premises to remove the equipment, fixtures and fittings. 4The Respondents assert that the Tribunal has no jurisdiction to hear Shree's claim because there is neither a retail tenancy claim nor an unconscionable conduct claim within the meaning of the Retail Leases Act 1994 . Mr Singh also denies that he is a lessee of the premises. 5The issue of whether the Tribunal has jurisdiction to hear Shree's claim was set down for preliminary hearing before me on 25 March 2011.These reasons relate to the determination of that issue. 6Mr Sharma, a director of Shree, appeared as its agent at the hearing. While there was no appearance by NIF, Mr Young, who appeared for Mr Singh, indicated that he had been requested to make his submissions on jurisdiction on behalf of both respondents.