Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd (No 2) [2013] NSWADT 184

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd (No 2) [2013] NSWADT 184 Hearing dates: 4 July 2013 Decision date: 04 July 2013 Jurisdiction: Retail Leases Division Before: P H Molony, Judicial Member Decision: The application for separate hearings is dismissed Catchwords: Procedure - separate hearing Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Uniform Civil Procedure Rules 2005 Cases Cited: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118 Coogee Bay Village Pty Ltd v Profilio (RLD) [2011] NSWADTAP 39 Crawley v Vero Insurance [2012] NSWSC 593 Torchia v Swanton (No 2) [2011] NSWADT 185 Southwell v Bennett [2010] NSWSC 1372 Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2. Category: Interlocutory applications Parties: Brashes Convenience Store Pty Ltd (Applicant) Pitt & Castlereagh Pty Ltd (Respondent) Representation: H Soltan, (Applicant- Applicant) Bartier Perry (Respondent) File Number(s): 125151

reasons for decision

Background 1On 4 July 2013 the Applicant made an oral application in the course of a directions hearing for orders that the Tribunal determine issues of liability and jurisdiction with respect to its claim, before hearing and determining the issue of damages (if any). I refused to make such an order. Mr Soltan has since requested written reasons for that decision. These are those reasons. 2The application for an original decision was filed on October 2012 and subsequently amended on 3 December 2012. It s a combined retail tenancy and unconscionable conduct claim relating to the Applicant's alleged occupation of shop premises in Pitt Street Sydney from 20 November 2006 to 17 November 2009. The Applicant alleges that by virtue of provisions of the Retail Leases Act 1994 ('the RL Act'), the duration of the Lease was five years; that the Respondent unlawfully terminated the Lease by serving a Notice to Quit dated 16 October 2009; that having regard to the circumstances in which the Notice was served, the Respondent thereby engaged in unconscionable conduct; and that the Applicant is entitled to damages for losses suffered on account of the termination and to declaratory relief. 3The Respondent initially contested the monetary jurisdiction of this Tribunal to hear and determine the Applicant's claim, and, in the alterative, sought an order that it be transferred to the Supreme Court. Deputy President Chesterman heard that application on 26 March 2013. At that time the Applicant had filed its affidavit evidence and an expert report in relation to damages. 4On 29 May 2013 Deputy President Chesterman found that the Tribunal did have jurisdiction, and dismissed the application for transfer (see Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118.) The matter was listed for direction on 6 June 2013. 5That directions hearing took place before Judicial Member Rickards. He made orders for the filing of a reply by the Respondent, and with respect to the production of documents by the Applicant. While it is not apparent from the orders made by Rickards JM, both the Applicant and the Respondent agree that the Applicant had asked Mr Rickards to order a separate hearing at that time, which he refused to do. 6On 4 July 2013 the Respondent filed its reply. In it the Respondent asserted, among other things, that the Applicant had not entered into a lease or leases with it to which the RLA applied, whether expressly or by operation of law; and, alternatively, alleging that any such lease is voidable in equity; that the Applicant's claim that it holds a 5 year lease constitutes unconscionable conduct, and taking issue with the damages claimed by the Applicant.