Gersak v Kaldelis [2015] NSWCATCD 94

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gersak v Kaldelis [2015] NSWCATCD 94 Hearing dates: 19 May 2015 Decision date: 21 August 2015 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: The premises are not used as a retail shop and the application is dismissed Legislation Cited: Retail Leases Act, 1994 Cases Cited: Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2002] NSWSC 1151 Wood and Wilson v Bergman [2003] NSWADT 82 Category: Principal judgment Parties: Michael Gersak (applicant) George Kaldelis and Aspasia Kaldelis (respondents) Representation: Solicitors: Bay Legal (Applicant) Agent: Prime Property Partners (Respondent) File Number(s): COM 15/12135 and COM 15/12137 Publication restriction: Nil

Reasons for decision 1. This is a dispute between the tenant Michael Gersak (Tenant) and the landlords George and Aspasia Kaldelis (Landlord). On 16 October 2013, the parties entered into a lease of a shop in No [***]Place, Maroubra NSW 2035 (the premises) for a term of two years with an option of one year (Lease). 2. The Tenant has lodged an Application for an Original Decision for interim orders against a lock out and also a claim against the Landlord that the premises was not fit for its purposes and that there were misrepresentations about the condition of the premises. 3. In the course of this dispute, a question was raised as to whether the premises was a retail shop lease within Section 3 of the Retail Leases Act 1994 (NSW) (RLA). 4. The Tribunal is asked to determine whether the Tribunal has jurisdiction to hear this matter. In this respect, the relevant question is whether the lease is a retail lease or a commercial lease. If the lease is not a "retail shop lease" as defined under the RLA, the Tribunal does not have jurisdiction to hear this matter.