K M Sons Pty Ltd v Bonovas [2014] NSWCATCD 111

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: K M Sons Pty Ltd v Bonovas [2014] NSWCATCD 111 Hearing dates: 20 June 2014 Decision date: 26 June 2014 Before: S Westgarth, Deputy President Decision: 1.The Tribunal declares that the lease between the parties is a retail shop lease and, accordingly, the Tribunal has jurisdiction to determine the dispute. Catchwords: Definition of retail shop Function or catering centre Legislation Cited: Retail Leases Act 1994 (NSW) (the Act) Category: Principal judgment Parties: K M Sons Pty Ltd (applicant) Con and Lynne Bonovas (respondents) Representation: Applicant (self-represented) Respondent by their solicitor Mr P Skouteris, Andresakis and Associates File Number(s): COM 14/31085 Publication restriction: -

reasons for decision

Introduction 1An application was filed on 17 June 2014 on the Tribunal form concerning Retail Lease disputes. The application contained no information as to the orders being sought but in response to the form's requirement to state reasons for requesting orders the applicant had written: " Trying to get key from the owners who has been paid all the rent in arrears story attached in rent form". 2Where an applicant seeks an interim order, the Tribunal's practice is to require the applicant to file a separate form called a "Request for interim order". The applicant completed and lodged such a form on the same day as the above application (17 June 2014). In the request for an interim order form the applicant stated that the interim order requested was as follows: "requesting to get key for property". The address of the property at Blacktown was identified. In addition, in response to the question as to the reasons for requesting the interim order the applicant had written: "We are the tenants in [XXX]. Due to the business not going well we were behind in rent. On 11 June when I came to open office there was notice by the property agent not to enter the premises. I called them and find out the owner has locked the premises as we were behind in rent. This was done without any notice. Then the agent told us until and unless we pay the whole amount of $39,900 this is $24,662 in arrears plus rent month advance they are not allowing us to get in". 3The applicant provided some further information concerning the background to the dispute in attachments to the application form. 4On 18 June 2014 the applicant's application for an interim order was dismissed on the basis that there was no evidence of a retail lease and no evidence in relation to the nature of the business being conducted and whether or not it falls within the definition of a retail shop. 5On 19 June 2014 the Tribunal received a further application for interim orders to allow the applicant possession of the property the subject of the dispute. The Tribunal made orders requiring the applicant to file and serve points of claim and evidence. In addition the Tribunal listed the matter for hearing of the application for interim relief on Friday 20 June 2014. 6On 18 June 2014 the applicant lodged further documents with the Tribunal. These were: * A deed of consent to assignment of lease dated 21 August 2012 * A lease dated 14 December 2009 7The Tribunal received an email from the applicant late on 19 June 2014 attaching the points of claim required by the Tribunals directions.