Shayer v Bryron Bay Retirement Villages Pty Ltd [2016] NSWCATCD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shayer v Bryron Bay Retirement Villages Pty Ltd [2016] NSWCATCD 13 Hearing dates: 14 July 2015 (27 July 2015 – last date for submissions) Decision date: 11 February 2016 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: 1. Byron Bay Retirement Villages Pty Ltd's application for an order pursuant to 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 is granted.

2. Proceedings COM14/00472 is dismissed. Catchwords: Retail leases; Strike out application; whether application frivolous or vexatious; whether conduct of proceedings has caused unreasonable disadvantage; exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Philip Shayer – Applicant in substantive application/ Respondent in strike out application Byron Bay Retirement Village Pty Ltd - Respondent in substantive application / Applicant in strike out application Representation: Mr Shayer - Self-represented Byron Bay Retirement Villages Pty Ltd - Lynch Andrews Lawyers File Number(s): COM 15/39968 and COM 14/00472 Publication restriction: Nil

Reasons for decision

Introduction 1. Mr Shayer and Byron Bay Retirement Villages Pty Ltd (BBRV) have been involved in litigation which commenced in Mr Shayer's applications for an urgent interim order and for an original decision under the Retail Leases Act 1994 which were filed in the former Administrative Decisions Tribunal (ADT) on 5 June 2013. At that time, Mr Shayer claimed that BBRV had turned off the power to Beaches Coffee Shack, a business he operated within the Beaches of Byron Caravan Park, which is operated by BBRV. Mr Shayer claims that the nature of the agreement between the parties in respect of the operation of the business constitutes a retail lease governed by the Retail Leases Act 1999, although this is denied by BBRV. 2. The application for an original decision was not finalised by 1 January 2014, when the ADT was abolished and the Civil and Administrative Tribunal (NCAT) came into existence. At that time, the Retail Division of the ADT became the Retail Leases List in the Consumer and Commercial Division of NCAT. The application was allocated file number COM 14/00472 and has since been dealt with under the transitional provisions set out in Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 3. On 24 June 2015 BBRV lodged application COM 15/39968. In that application, BBRV seeks an order striking out Mr Shayer's application for an original decision, COM 14/00472. This application was heard in Tweed Heads on 14 July 2015. Following that hearing, the parties were given an opportunity to make submissions on: 1. The strike out application and 2. Whether a guardian ad litem should be appointed for Mr Shayer. 1. For the reasons set out below, I have determined to grant the strike out application and dismiss COM 14/00472. 2. My reasons for this decision follow.