District Court New South Wales Medium Neutral Citation: Mintus Properties Pty Ltd v Sutcliffe & Mort Pty Ltd [2019] NSWDC 657 Hearing dates: 11 September 2019 Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Proceedings transferred to NSW Civil and Administrative Tribunal pursuant to section 75(1) Retail Leases Act 1994. 2. Costs of proceedings including costs of the Motion to be costs in the Tribunal proceedings. Catchwords: LEASES AND TENANCIES – retail tenancy dispute – transfer to NSW Civil and Administrative Tribunal Legislation Cited: Retail Leases Act 1994, s 68, s 75 Uniform Civil Procedure Rules 2005, r 42.7 Cases Cited: GPT Management Ltd & Anor v Spa Heaven Pty Ltd & Ors [2005] NSWSC 1043 Melvic Pty Limited v MPP Holdings Pty Limited [2007] NSWSC 1433 Oriental Carpet Department Store Pty Ltd v Supacenta Pty Ltd [2003] NSWSC 783 Ticehurst v Cross [2005] NSWSC 574 Category: Procedural and other rulings Parties: Mintus Properties Pty Ltd (plaintiff) Sutcliffe & Mort Pty Ltd (first defendant) Stephen John Kelly (second defendant) Representation: Counsel: Mr J Nathan (plaintiff) Mr Zmood (defendants) Solicitors: Effective Legal Solutions (plaintiff) JR Lawyers (defendants) File Number(s): 2018/279651 Publication restriction: None Judgment INTRODUCTION 1. Mintus Properties Pty Ltd commenced proceedings in this Court against the defendants ("Sutcliffe") for unpaid rent and agents' fees. Sutcliffe applies to have the proceedings transferred to the NSW Civil and Administrative Tribunal. ISSUES 1. Initially Mintus contended that the dispute between the parties was not a "retail tenancy dispute" within the meaning of that term in s 75 of the Retail Leases Act 1994, with a consequence that the transfer provisions in s 75 were inapplicable. However, the definition of a "retail tenancy dispute" is "exceedingly broad". [1] The lease was admitted into evidence and by final submissions, Mintus accepted that the dispute was a retail tenancy dispute. The issue that remains concerns whether a transfer order is appropriate. SECTIONS 68 AND 75 OF THE RETAIL LEASES ACT 1994 1. Section 75 of the Retail Leases Act 1994 provides: "75 Removal of court proceedings to the Tribunal (1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that: (a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and (b) the interests of justice do not require that the matter be dealt with by the court. (2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court. (3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned. …" 1. Thus, generally, a retail tenancy dispute should be dealt with by the Tribunal. This Court must transfer the proceedings so long as it is satisfied that the dispute is "appropriate" to be and "may effectively be dealt with" by the Tribunal and the interests of justice do not require the matter to be dealt with by the Court. 2. Generally for retail tenants the legislative policy favours "mediation rather than litigation". [2] Section 68 of the Act provides that a retail tenancy dispute "may not be the subject of proceedings before any court" unless "the Registrar has certified in writing that mediation…has failed to resolve the dispute" or "the court is otherwise satisfied that mediation…is unlikely to resolve the dispute or matter". 3. No mediation has been held between the parties. There is no certification by the Registrar. No application has been made for the Court to be "otherwise satisfied" in accordance with s 68. [3] Whilst transfer applications have been refused in circumstances where delay in bringing the application has resulted in the final hearing in the Court being imminent, [4] or where the Court is not satisfied of the existence of a retail tenancy dispute, [5] neither of those circumstances is closely analogous to the present proceedings. THE ARGUMENTS 1. Sutcliffe contends that ss 75(1) and (2) are applicable and warrant a transfer order. 2. Mintus argues that nothing would be changed by a transfer: a mediation could still be ordered and there was no evidence that proceedings in the Tribunal would be disposed of more expeditiously, efficiently or inexpensively. I accept these submissions. However, they do not appear to answer the policy mandated by s 75. 3. The circumstance that the matter might conveniently be dealt with either by the Tribunal or by the Court is only a factor against transfer if there is a policy or principle that the status quo should be preserved, that because the proceedings are in this Court it is convenient for them to stay. This is not a policy reflected in the legislation, for two reasons. 4. First, subss (1) and (2) of s 75 read together indicate that once the Tribunal can appropriately deal with the matter (see para (a)), the matter must be transferred unless the interests of justice require the matter to be dealt with by the Court. The circumstance that the proceedings are in the Court is not sufficient to establish that the interests of justice require the Court to determine the matter; on the contrary, s 75(1) compels a transfer of the proceedings in this Court, so long as the other pre-conditions are satisfied. 5. In the present proceedings there is no hearing date set. It is evidently at least five months away. Affidavit evidence has not yet been filed. These matters, together with the concession of Mintus that the Tribunal could appropriately deal with the matter, are sufficient to satisfy the statutory conditions in paras (a) and (b) of s 75(1), and require the Court to transfer the proceedings. 6. Secondly, there remains a real doubt about whether this Court can deal with the matter. Section 68 precludes retail tenancy disputes being the subject of proceedings in this Court unless certain preconditions are satisfied. They are not, and Mintus does not contend otherwise. That the orders of the Court in these proceedings are not to be invalid by s 68 (see s 68(4)) or that the Court could order a mediation, falls well short of establishing the existence of the Registrar's certification of a failed mediation or satisfying the Court of the inutility of mediation, the statutory pre-conditions in s 68(1). 7. Thus, the interests of justice do not require the matter to be dealt with by the Court. Indeed, as things presently stand, the matter cannot be dealt with by the Court. 8. For these reasons, the Court "must" transfer the proceedings in accordance with s 75(1). COSTS 1. As to costs, Mintus sought that I make no order about costs in the expectation that the Tribunal may include the costs of the proceedings in any costs order it ultimately makes. Sutcliffe argued that it was successful and should have its costs. As there has been no determination of the merits of proceedings which are to be transferred, it would be inappropriate for there to be an order for the costs of the proceedings in favour of either party. Insofar as this Court is able, the appropriate order is for the costs of the proceedings to be the costs in the Tribunal proceedings. 2. As to the costs of the motion, there may be some criticism that can be directed at Sutcliffe by reason of the delay in bringing this application. Be that as it may, the application needed to be brought for the transfer to be effected. I also take into account that Sutcliffe did not argue directly that the proceedings brought by Mintus were defective by reason of s 68. 3. There seems to be no reason why a specific order for the costs of the motion should be made. In my view, the approach indicated in Uniform Civil Procedure Rule 42.7 is appropriate. ORDERS 1. The orders of the Court are: 1. Proceedings transferred to the New South Wales Civil and Administrative Tribunal pursuant to s 75(1) of the Retail Leases Act 1994. 2. Costs of the proceedings including costs of the motion to be costs in the Tribunal proceedings. ********** Endnotes 1. See GPT Management Ltd & Anor v Spa Heaven Pty Ltd & Ors [2005] NSWSC 1043 at [14]. 2. GPT Management at [15]. 3. See generally Oriental Carpet Department Store Pty Ltd v Supacenta Pty Ltd [2003] NSWSC 783 at [10]. 4. Ticehurst v Cross [2005] NSWSC 574 at [20]. 5. Melvic Pty Limited v MPP Holdings Pty Limited [2007] NSWSC 1433 at [21]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2019