Australian Credit & Finance Corporation Pty Ltd ATF SumoSalad, MLC Centre Trust v GPT RE Limited & QIC Limited [2011] NSWADT 234

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Australian Credit & Finance Corporation Pty Ltd ATF SumoSalad, MLC Centre Trust v GPT RE Limited & QIC Limited [2011] NSWADT 234 Hearing dates: On the papers Decision date: 07 October 2011 Jurisdiction: Retail Leases Division Before: S Higgins, Deputy President Decision: 1.The application to join Mr Chalik as a party is refused. 2.The application is dismissed. 3.No order as to costs. Catchwords: Retail lease - joinder of covenantor as a party - futile joinder as no dispute between the lessor and lessee to the lease - licence agreement between lessee of the lease and a franchisee - franchisee pays licence fee and other payments due and payable under the lease to the lessor - whether a retail shop lease existed between franchisee and owner of the premises Legislation Cited: The Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Jonamill Pty Ltd v Alramon Pty Ltd (No. 2) (RLD) [2010] NSWADTAP 3 Category: Interlocutory applications Parties: Australian Credit & Finance Corporation Pty Ltd ATF SumoSalad, MLC Centre Trust - Applicant GPT RE Limited & QIC Limited - Respondents Representation: Counsel M Allars (Respondents) I Chalik (Applicant agent) Raj Lawyers (Respondent) File Number(s): 115077

REasons for decision

Introduction 1On 3 June 2011, the applicants, Australian Credit & Finance Corporation Pty Ltd ATF SumoSalad MLC Centre Trust (ACFC), filed a retail tenancy claim application with the Tribunal seeking: (a) a declaration that a retail shop lease existed between itself and the respondents, GPTE RE Limited and Queensland Investment Corporation (GPTE & QIC), for shop 6K5 (the premises) in the retail section of the MLC Centre at 19 Martin Place, Sydney; (b) such orders as the Tribunal deems fit. 2On the same day as filing its retail tenancy claim application, ACFC made an application for an urgent interim order as it had been locked out of the premises on 4 May 2011. ACFC alleged its fittings and fixtures were being damaged and removed and it sought an interim order that preventing any further damage or works being undertaken to the premises. 3ACFC operated a Sumo Salad business from the premises from 30 May 2007 to 4 May 2011. It operated that business as a franchisee. Mr Igor Chalik (Mr Chalik) is a director of ACFC. 4ACFC's interim order application was heard on 9 June 2011. Ms Allars, of counsel, who appeared for the respondents, opposed the stay. She also argued that the applicant, ACFC, did not have standing to bring this application as no retail shop lease existed between it and the respondents, GPTE & QIC. Written submissions and an affidavit of Melissa Chandler, Retail Manager of the MLC Centre, was tendered in support of these arguments. Ms Chandler is employed by Jones Lang LaSalle (NSW) Pty Ltd, the respondents' manager of the Centre. 5As Mr Chalik had not come prepared to argue the issue in regard to standing and he had not had an opportunity to fully consider the affidavit of Ms Chandler, on 9 June I only dealt with the interim order application. At the conclusion of hearing submissions, I made an order refusing the interim order application and gave brief reasons for decision in regard thereto. I then made orders, by consent, for the filing and serving of written submissions on the issue of the ACFC's standing to bring its application. By consent, I also made an order that this issue was to be determined on the papers, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act).