Bounouar v South Coogee Bowling Club Ltd [2016] NSWCATCD 67

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bounouar v South Coogee Bowling Club Ltd [2016] NSWCATCD 67 Hearing dates: 12 February 2016 and 13 May 2016 Decision date: 01 July 2016 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: 1. The Tribunal determines the parties entered into a retail lease for a period of 5 years commencing on 2 March 2012 and terminating on 1 March 2017.

2. The order made by consent on matter number COM 16/06518 on 12 February is discharged.

3. The matters are to be listed for directions at the earliest available date by direction of the Divisional Registrar. Catchwords: ADMINISTRATIVE LAW—Retail Leases—whether applicant is a retail business—whether located in a shopping centre—whether lease between the parties Legislation Cited: Civil and Administrative Tribunal Act 2013 Retail Leases Act 1994 Cases Cited: ACN 079 830 596 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fisherman's Co-operative Ltd [2007] NSWADT 297 Clasic International Pty Ltd v Lagos and Ors [2002] NSWSC 1155 Gnych v Polish Club Limited [2015] HCA 23 Category: Principal judgment Parties: Amina Bounouar (applicant) South Coogee Bowling Club Ltd (respondent) Representation: Mr Brendan Pigott, Solicitor (Applicant) Mr Jacques Kosmin, Kosmin & Associates (Respondent) File Number(s): COM 16/06518 and COM 16/06524 Publication restriction: Nil

REASONS FOR DECISION

Background 1. On 9 February 2016 the applicant tenant filed application COM 16/06518 for interim orders under the Retail Leases Act 1994 (RL Act) and on the same date filed application COM 16/06524 for an original decision pursuant to the RL Act. 2. On or about 2 March 2012 the applicant commenced operating the kitchen and dining room at the respondent's premises. The business is described as a kitchen and bistro. 3. The applicant was not and has never been required to and has not paid rent since her business commenced at the respondent's premises. Apart from an issue in relation to obtaining public liability insurance, it appears the applicant has made no other contribution either in monetary or any form to the respondent or its members and guests, except for the provision of food. 4. The applicant's operation continued without issue until about 24 December 2015 when the applicant was advised by an official of the respondent that the respondent intended to terminate the applicant's business and to have an alternative operator conduct the business. The reason given to the applicant was that the new operator would be able to renovate the kitchen at its expense. The applicant was advised that her business would finish on 31 January 2016. 5. The respondent provided a formal notice of termination by letter dated 24 December 2015 over the signature of Mr Michael Davies, Club President. That letter confirms the general nature of the facts in the previous paragraph, with the addition of the following: "As you well know the club has been under orders from Randwick Council Health Officers to renovate the current kitchen in order to meet current requirements. Unfortunately the club is not in financial position to fund such renovations in the current environment." 1. As is usual with an application for an interim order, the matters were listed for urgent interim hearing, on 12 June 2016. At that hearing the following order was made: "1. By consent, the respondent will take no steps to disturb the applicant's exclusive occupation of the bistro kitchen and dining room until further order of the Tribunal." 1. Also on 12 February 2016, Senior Member Rosser made orders on the original application for the parties to serve all documents on which they intended to rely by 21 March 2016 and 4 April 2016 respectively. 2. On 1 April 2016 the solicitor for the respondent wrote to the Registry advising that the mandatory mediation (on 30 March 2016) had not resolved the dispute, that the applicant had not provided any further documents than those attached to the original application, noted the matter was set down for hearing on 19 April 2016 and requested that order 5 made on 12 February 2016 (for the respondent to file its evidence) be varied to 13 April 2016. 3. In response to that request, the solicitor for the applicant noted the potential prejudice to the applicant by such late service of evidence but concluded by stating that the applicant had no real objection to the extension of time provided the hearing date could be adjourned so the matter could be properly prepared. 4. On 14 April 2016 Senior Member Vrabac amended the 12 February 2016 timetable, extending time for compliance with orders 4 and 5 until 14 April 2016 and 19 April 2016 respectively. 5. On 18 April 2016 the solicitor for the applicant again wrote to the Tribunal (by facsimile) noting the applicant had requested certain documents from the respondent (apparently being business records of the respondent), seeking informal production. This letter was accompanied by an application for issue of a summons for those documents. The Tribunal required the applicant also request an order for "shortened service" and that was provided immediately. 6. Despite the short time period, the respondent produced a bundle of documents at the hearing on the following day, being 19 April 2016. 7. The respondent had also filed a bundle of evidence in the Registry on 14 April 2016. 8. At the hearing on 19 April 2016, by consent the parties agreed to provide any documents and written submissions to be relied upon by them on 26 April 2016 and 3 May 2016 respectively. The decision was to be made on the papers. 9. This is the decision.