Steak Plains Olive Farm Pty Limited ACN 161 539 153 v Australian Executor Trustees Limited ARSN 093 367 518 [2014] NSWCATAP 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Steak Plains Olive Farm Pty Limited ACN 161 539 153 v Australian Executor Trustees Limited ARSN 093 367 518 [2014] NSWCATAP 85 Hearing dates: 7 November 2014 Decision date: 17 November 2014 Jurisdiction: Appeal Panel Before: The Hon. DA Cowdroy, Principal Member S Higgins, Principal Membe Decision: 1. The appeal be dismissed. 2. Order number 2 made on 13 August 2014 that the appellant pay the applicant's costs of the application be set aside. 3. That each party pay its own costs of the application for transfer and of this appeal. 4. That proceedings be listed for directions within 7 days for the purpose of a final timetable of directions for the hearing. Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) s 36 Law Reform (Law and Equity) Act 1972 (NSW) Retail Leases Act 1994 (NSW) Category: Principal judgment Parties: Steak Plains Olive Farm Pty Limited ACN 161 539 153 (Appellant) Australian Executor Trustees Limited ARSN 093 367 518 (Respondent) File Number(s): AP 14/46554 Publication restriction: None Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-08-13 00:00:00 Before: M Harrowell, Principal Member File Number(s): COM 14/09217

reasons for decision 1Steak Plains Olive Farm Pty Limited ('the appellant') appeals a decision of the NSW Civil and Administrative Tribunal ('the Tribunal') delivered on 13 August 2014 ('the decision'). The decision refused an application by the appellant to transfer proceedings between it and Australian Executor Trustees Limited ('the respondent') ('the principal proceedings') to the Supreme Court of NSW. 2The application to transfer was made on the basis that the Tribunal had no power to grant the remedy of relief against forfeiture, and therefore did not have jurisdiction to determine all issues arising in the proceedings. 3In the principal proceedings, the respondent sought orders that an agricultural lease (registered number AH673929B) of a property known as 'Steak Plains' located at Hillston ('the lease'), which commenced on 1 October 2012, and having an expiry date of 30 September 2030, was terminated by notice dated 4 December 2013 for breaches of the lease. The respondent also sought orders for compensation, and possession of the site. 4The appellant denied that the lease, and an associated Water Transfer Agreement, had been validly terminated by the respondent's notice, and claimed that it should be granted relief against forfeiture, in the event that the breaches alleged against it were upheld. 5The land, the subject of the lease, was used for purposes of an olive grove. The parties acknowledge that the Agricultural Tenancies Act 1990 (NSW) ('the Act') is applicable to the present dispute. 6The primary proceedings were commenced in this Tribunal on 12 February 2014. After several directions hearings, it was fixed for final hearing to commence 17 June 2014. However, on 11 June 2014 the appellant lodged an application in the primary proceedings to transfer them to the Supreme Court, pursuant to clause 6(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'). 7By summons dated 13 June 2014, the appellant commenced proceedings in the Supreme Court, seeking relief against forfeiture. 8The Tribunal's relevant findings in the decision were, in summary: (a) The Tribunal is an inferior court for the purpose of the Law Reform (Law and Equity) Act 1972 (NSW) ('Law Reform Act'); (b) The Tribunal does not generally have a power to grant an equitable remedy, nor a general jurisdiction to grant equitable relief; (c) The Tribunal has therefore no power to grant an equitable remedy to relieve against forfeiture; (d) Despite such conclusion, the question arises whether the Tribunal has jurisdiction to make an enquiry upon the same considerations that might be relevant to the grant of relief against forfeiture, and power to make orders to the same effect; (e) The power of the Tribunal under the Act does not define the nature of the claims that might be brought before the Tribunal for resolution. The Tribunal is given power to determine 'any... dispute arising from or relating to an agreement creating a tenancy or any other dispute... arising from, or relating to, a tenancy' (see s 20(b) of the Act). This power, prima facie, is sufficiently wide to entitle a party to relief against forfeiture; (f) The Tribunal has jurisdiction to determine disputes within the definition provided for by s 20. Regard must be had to the order-making power to decide whether the controversy in which relief against forfeiture is claimed can be finally resolved by the Tribunal; (g) Section 21 of the Act includes a power to make orders giving effect to determinations that may be made by the Tribunal (s 21(a)); power to make an order that restrains any action in breach of a term of a tenancy (s 21(c)); an order that requires an action in performance of a tenancy (s 21(d)); and an order that an owner or tenant perform such work or take such steps as the order specifies to remedy the breach of a term of the tenancy (s 21(g)). Further, s 21(4)(b) allows the Tribunal to make 'any ancillary order the Tribunal thinks appropriate'; (h) The objects of the Act are to provide a mechanism for resolving agricultural disputes by the Tribunal (s 3); matters for determination relate to disputes affecting the rights and obligations conferred by the Act and disputes arising from or relating to an agricultural tenancy agreement (s 20); the power in the Tribunal is to, by order, give effect to its determination; the fact that the legislature has not granted the Tribunal a general equitable jurisdiction is not a reason to interpret the power granted by the Act as ineffective to enable resolution of the dispute; under the Act, jurisdiction is granted by reference to the subject matter of the dispute; (i) Accordingly, the Tribunal has jurisdiction to determine the dispute and to make orders whether, in respect of an agricultural tenancy, there should be relief against forfeiture. 9For the above reasons, the application to transfer the proceedings to the Supreme Court was refused, and such refusal gives rise to this appeal.