Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87 Hearing dates: 18 June 2012 Decision date: 26 March 2014 Before: D Bluth, Senior Member Decision: 1.That the premises are not used as a retail shop and the application is dismissed Legislation Cited: Retail Leases Act 1994 Cases Cited: Akora (Bondi Junction) Pty Ltd v Buttrose [2008] NSWADT275 Car City Minchinbury Pty Limited v Lifestyle Vehicles Pty Limited [2008] NSWADT AP76 Manly Council v Malouf (2004) NSWCA299 Moweno Pty Limited v Stratis Promotions Limited (2002) NSWSC 1151. Moweno Pty Limited v Stratis Promotions Limited (2003) NSWCA 376 Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 Sassin v McGlinn & anor t/as Westland Produce (RLD) [2008] NSW ADTAP54 Thompson v Easterbrook (1951) 83CLR 467 Tringas v Quach [2007] NSW ADT 24 Westropp v Elligott (1884) 9 App Cas 815 Wood & Wilson v Bergman [2003] NSWADT 82 Category: Principal judgment Parties: Honings Bakery Pty Limited (applicant) Cerialis Pty Limited (respondent) Representation: Ms C Latham (applicant) Mr D Murr SC (respondent) Ms Cheryl Singer (applicant) Fox & Staniland (respondent) File Number(s): COM 14/13023

reasons for decision 1On 7 March 2013, Honings Bakery Pty Limited ("Honings") filed an application for an Original Decision in the Administrative Decisions Tribunal seeking declarations that it has either validly rescinded or validly terminated a lease ("the Lease") it entered into on 30th April 2012 with Cerialis Pty Limited ("Cerialis") in respect of the premises at lots 1 and 2, 144 George Street, Hornsby ("the premises"). 2Honings also sought orders that Cerialis repay the holding deposit and an amount paid by Honings to meet a call made by Cerialis on a Bank Guarantee provided pursuant to the Lease and pay damages in respect of costs Honings incurred associated with the Lease and the Premises. 3It is agreed between the parties that no lessor's disclosure statement was given to Honings as required pursuant to s 11 of the Retail Leases Act 1994 (NSW) ("the Act"). Honings claims inter alia that, as a result of this omission by Cerialis, it was entitled to did in fact and terminate the Lease pursuant to the provisions of the Act. 4Cerialis asserts that this Tribunal does not have jurisdiction to hear and determine this matter as the Lease is not a retail shop lease as defined by the Act. The use described in the Lease is as 'commercial bakery including retail sales'. 5Honings says in turn that the Lease is a retail shop lease as defined by the Act, as the Lease was an agreement under which Cerialis agreed to grant to Honings for value a right of occupation for the purpose of the use of the premises as a retail shop. 6Accordingly the proceedings before the Tribunal at this hearing on 18 June 2013 are for determination of a preliminary issue, namely does this Tribunal have jurisdiction to determine the claims that are the subject of the proceedings.