Administrative Decisions Tribunal New South Wales Medium Neutral Citation: P Vlahakis Pty Ltd v Bevillesta Pty Ltd [2011] NSWADT 166 Decision date: 08 July 2011 Jurisdiction: Retail Leases Division Before: K Rickards, Judicial Member Decision: 1) The 1) The Applicant P Vlahakis Pty Ltd is not itself, by its officers, employees or agents to use a forklift withi the loading dock at, or anywhere else within the premises known as Harbourside Shopping Centre, Darling Harbour New South Wales. 2) Costs of the interim applications are reserved. Either party may apply for an order for costs relating to the applications for urgent interim orders upon determination of the original proceedings. Catchwords: Interim orders; use of equipment Legislation Cited: Retail Leases Act 1994; Occupational Health & Safety Act 2000 Cases Cited: Beecham Group Ltd -v- Bristol Laboratories Pty Ltd 118 CLR 618; Nam -v- Commonwealth Funds Management Pty Ltd & anor [2002] NSWADT 80 Category: Interlocutory applications Parties: P Vlahakis Pty Ltd (Applicant) Bellivesta Pty Ltd (First Respondent) Suntrack Holdings Pty Ltd (Second Respondent) Representation: Dr J Keogh (Applicant) P Faulkner (2nd Respondent) Birch Partners (Applicant) File Number(s): 115004 REASONS FOR DECISION 1The Applicant is the lessee of retail shop premises located at the Harbourside Shopping Centre at Darling Harbour in Sydney New South Wales. The leased premises also include two storage areas located within the loading dock area of the centre. The First and Second Respondents are respectively the former and present lessors of the premises. 2Both the Applicant and the Second Respondent have filed an Application for Urgent Interim Orders relating to use of a forklift by the Applicant within the loading bay at the shopping centre as part of its retail business operations. Each party accepts that each of these applications constitute a "retail tenancy claim" as defined by s70 of the Retail Leases Act 1994 . 3There are a number of issues raised between the parties, including a dispute as to whether or not there is an enforceable agreement between the parties permitting use of the forklift by the Applicant, within the original proceedings which have now been listed for hearing on 10 and 11 October 2011. In the interim, the Applicant seeks orders permitting it to use the forklift in the loading dock area, and to park and recharge the forklift in an area of the premises known as the "compressor room". The Respondent seeks interim orders preventing use of the forklift anywhere within the shopping centre, including the loading dock. 4The decision which follows, as to whether or not any interim order should now be made, does not require, nor does it create, any binding decision upon the ultimate issues surrounding use of the forklift at the premises. 5The Tribunal may, pursuant to section 72(4) of the Retail Leases Act 1994, "make an interim order ... pending final determination of a claim, if it appears to the Tribunal desirable to do so." Determination of the issue as to whether or not the Applicant should be permitted to operate its forklift pending final determination of the proceedings, also does not require the Tribunal at this stage to provide a "forecast as to the ultimate result of the case"; see the outline of principles applicable to interlocutory injunctions set out within paragraph 4 of the joint judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] 118 CLR 618 . 6The approach which should be taken by this Tribunal in deciding whether to make interim orders is set out by O'Connor P within the Tribunal's decision in Nam & Anor v Commonwealth Funds Management Ltd & Anor [2002] NSWADT 80; the appropriate tests to be applied in the present proceedings, as distilled from Nam , are as follows: Does the applicant for the interim order have a reasonably arguable case in relation to the ultimate orders sought? If not, relief should not be granted. If the applicant does have a reasonably arguable case, is the prejudice or inconvenience which is likely to be caused to the respondent by the making of the interim order, outweighed by the prejudice or inconvenience likely to be caused to the applicant if the interim order is not made? If not, relief should not be granted. Are damages which may be awarded at the final hearing an adequate alternative remedy to the interim orders sought? If so, this is a strong mitigating factor against making interim orders. 7The Applicant purchased a forklift in late 2010. The stated purpose for this purchase was to enhance the loading and unloading of deliveries of drinks and food items to the loading dock. The Applicant contends that, before purchase, it obtained consent from the First Respondent (which was then the lessor of the premises) for the Applicant's use of the forklift in the loading area and that it was also agreed that the forklift could be parked and recharged in the compressor room. The Applicant says that this consent was conditional upon there being no damage caused by use of the forklift, adequate insurance being put in place by the Applicant to cover any loss arising from use of the forklift at the premises, and upon the Applicant arranging for an employee of the First or Second Respondent to be trained and licensed for the proper and safe use of the forklift. 8The Applicant says that this consent came expressly from the First Respondent's operations manager, Mr Tony Ramian. The Applicant says that it then worked collaboratively with Mr Ramian in selecting a suitable type and size of forklift and arranging for a suitable power point to be available in the compressor room for recharging to take place. 9By agreement, the Second Respondent took over the First Respondent's rights and obligations as lessor during late 2010. Mr Ramian remained employed in the role described by the Second Respondent as the "operations and facilities manager" at the Harbourside Shopping Centre. In relation to the alleged agreement between the parties regarding the forklift, the Second Respondent's evidence and submissions can be summarised as being that Mr Ramian did not have authority to vary the terms of the lease between the parties or to give permission for a forklift to be used at the premises, and that he did not in any event express any agreement on behalf of the Second Respondent that the forklift could be used. 10As stated above, resolution of the issue as to whether or not the Applicant and the Respondent are bound by an agreement permitting use of the forklift at the premises is not required for the purpose of deciding whether an interim order allowing such use should be made. Having considered the evidence provided thus far, what emerges is that each of the parties have a reasonably arguable case. Given that this threshold is surpassed, the Tribunal must consider and balance the likely prejudice or inconvenience caused to each of the parties by an interim order either permitting the Applicant to use and store the forklift at the premises, or preventing it from doing so. 11In relation to inconvenience and prejudice, the evidence of the Applicant is that it has expended the sum of $16,500 to purchase the forklift, that there is nowhere else to park it other than in the compressor room, that the forklift's only available use by the Applicant is for loading and unloading goods at the premises and that, because of the Applicant's reliance upon the alleged agreement that it could use the forklift in the loading dock area, the Applicant has been able to order bulk supplies of stock items which it could not do before in its years of operation at the premises, and thereby obtain cheaper prices. The Applicant also says that the unloading of bulk deliveries by hand takes approximately one hour for each pallet, which breaches the Second Respondent's rule that a loading dock bay should not be occupied for more than 20 minutes. The inference which it seems the Tribunal is also asked to draw is that, if the Applicant is unable to use the forklift, it will no longer able to purchase stock items in bulk because it takes longer to unload the stock items once they have been delivered to the loading dock area. There is no specific evidence to support this inference other than the information provided by Mr Vlahakis in paragraph 33 of his statement dated 6 May 2011 that, in relation to the purchase of fish and chips, purchase of these items was made on a daily basis and at an increased cost to the Applicant, prior to its purchase of the forklift. 12The Respondent has offered to purchase the forklift from the Applicant for at least the amount of the original purchase price. The Respondent submits that this offer removes the inconvenience claimed by the Applicant to have been caused by its expenditure toward purchase of a forklift which it cannot use. 13The Respondent has put in place, pursuant to the terms of the various leases which apply to the tenancies within the shopping centre, a new set of rules which, amongst other things, specifically forbid the use of a forklift anywhere by any tenant. The Respondent frankly concedes that this new rule was made specifically in response to the present dispute. In support of its stance that no forklift should be used by any tenant, the Respondent points out that the loading dock area is designed such that delivery trucks can only enter and leave in one same direction, and that there is specifically designated set of finger docks into which the trucks reverse so that they are adjacent to a raised loading area which is equivalent to the height of the truck trays; this, it is said, then allows safe and orderly movement of delivered goods either to the storage areas within the loading dock area, or directly to the retail shops located within the shopping centre. 14The Applicant did use the forklift within the loading dock area for a period of some weeks. There is no evidence of any accidents occurring during this period. However, use of the forklift within the area meant that stock items were unable to be removed from delivery trucks reverse parked within the finger dock area in accordance with the loading dock area design; instead, pallets were unloaded from trucks parked at the road level within the general loading dock area. This situation necessarily requires the forklift, in order to remove stock items from delivery trucks and to then either deliver those items into another of the Applicant's vehicles or to the storage units, to be driven either in a manner contrary to the designated one way flow of traffic, or to be driven out of the dock area on an extended route which takes the forklift out onto a public street when it is neither designed, registered or insured for such activity. In addition to its argument that this situation is inherently illegal and dangerous, the Respondent also points out that once the forklift is loaded, the operator has significantly restricted vision and is also required, if delivering items to the storage units used by the Applicant, to travel against the designated flow of traffic around what is a blind corner. 15The Respondent contends that use of a forklift in the foregoing circumstances is inherently unsafe and also poses an unacceptable risk to people in the vicinity of a loading dock area. It also submits that such a situation, if allowed, could potentially constitute a serious breach of its obligations pursuant to sections 8 and 10 of the Occupational Health & Safety Act 2000 . 16The Applicant's forklift has effectively been impounded by the Respondent since early May 2011. 17The Applicant has provided a series of photographs of the loading dock area and has submitted that there is ample room for the required movements of the forklift to take place with safety. It is pointed out that there is only a distance of approximately only 20 metres or so which the forklift has to traverse in order for it to collect delivered goods and to then place them into the storage units, and that the forklift was used without incident for a period of some weeks between March and May 2011. The Applicant argues that there is no reason to expect that there would be any risk to the safety of people using the loading dock area. 18The risk of a collision occurring between the loaded forklift and people using the loading dock area, or with vehicles travelling through the loading dock area, is not remote or fanciful. It is a real risk, due to the limited vision which the forklift operator has and the fact that the movements which the forklift has to make in order to collect stock items and to then deposit them in the storage areas involves movements inconsistent with the designated flow of traffic and within an area where delivery trucks would not have a clear sight of the forklift. The consequences of any such collision could reasonably be anticipated to include significant property damage or personal injury. 19In addition to the above risks of damage or injury, the Tribunal accepts that the Applicant is also potentially exposed to prosecution and significant financial penalties in the event that it was found to be in breach of occupational health and safety legislation, and particularly if an inspection took place after an accident involving the forklift. 20The Applicant is not prevented from carrying on its business by reason of not being able to use the forklift. If it is ultimately able to satisfy the Tribunal that it was legally entitled to use the forklift due to a binding agreement made with the Respondent, an award of damages could be made in respect of any proven loss arising from breach of that agreement, which would adequately compensate the Applicant. 21In addition to the adequacy of an award of damages to properly compensate the Applicant for any breach of agreement, it is also considered that the likely prejudice or inconvenience which would be suffered by the Respondent if the Tribunal were to permit the forklift to be used and stored at the premises by the Applicant over the period of time until these proceedings are finally resolved, significantly outweighs any loss or inconvenience likely to be suffered by the Applicant if the forklift is not able to be used during that period. The appropriate order which should therefore be made to be made is that, pending further order of this Tribunal, the Applicant is not itself, by its authorised officers, employees or agents to use a forklift anywhere in the premises known as Harbourside Shopping Centre, Darling Harbour, including the loading dock located at those premises. 22Both parties have sought costs relating to the applications lodged for interim orders. It was tentatively suggested during the course of the hearing that costs relating to the present interim applications should "follow the cause"; such an order should not be made in Tribunal proceedings, because it is incumbent upon a party seeking to obtain an order for costs to satisfactorily demonstrate that it is fair to depart from the usual principle that each party bears its own costs. Proper consideration as to whether or not it would be fair to make any order for costs can better take place following finalisation of the proceedings. For that reason, the issue of costs will be reserved. ORDERS 1) The Applicant P Vlahakis Pty Ltd is not itself, by its officers, employees or agents to use a forklift within the loading dock at, or anywhere else within the premises known as Harbourside Shopping Centre, Darling Harbour New South Wales. 2) Costs of the interim applications are reserved. Either party may apply for an order for costs relating to the applications for urgent interim orders upon determination of the original proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2011