Davies v Lyndhurst Developments Pty Ltd [2000] NSWADT 196 (6 April 2000)

Last Updated: 1 November 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL RETAIL LEASES DIVISION

CITATION: Davies v Lyndhurst Developments Pty Ltd [2000] NSWADT 196

PARTIES: APPLICANT

Jane Ann Davies

RESPONDENT

Lyndhurst Developments Pty Ltd

FILE NUMBERS: 995021

HEARING DATES: 6/04/2000

SUBMISSIONS CLOSED: 06/04/2000

DECISION DATE: 06/04/2000

BEFORE: Davidson R - Judicial Member

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED:

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

K Harkness, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

A McInerney, barrister

ORDERS: 1 The Tribunal has no jurisdiction in respect to the claims prior to the three year period having expired, but does have jurisdiction in respect of any amount which the applicant is able to establish after that three year period has expired

2 Costs reserved

Reasons for Decision:

Ex Tempore Reasons for Decision

1 This is an application under the Retail Leases Act 1994. The applicant is the Lessee and the respondent is the Lessor of a video rental shop in a shopping mall at Bomaderry. The application was filed on 9 November, 1999 and an amended application was handed to the Tribunal today with leave of the Tribunal to file that with the Tribunal without prejudice to the aspect of jurisdiction now to be decided.

2 The application seeks an order that the respondent reimburse to the applicant all outgoings paid by the applicant in respect of shop number 1, Lyndhurst Drive, Bombaderry for the period 1 October 1994 to 14 April 1998 to the extent that such outgoings paid were a contribution to equipment or services, including audit fees, cleaning, house lights, water rates, insurance, maintenance, repairs, security, sign rental, toilet supplies, waste disposal, agents costs and legal costs being a claim in the sum of $14,001.11.

3 There was raised in respect to that at the forefront the aspect of whether or not the applicant claimed any sum for interest in addition to that under section 72A of the Retail Leases Act 1994. That question is still outstanding.

4 The applicant sought, however, in the alternative to that the following orders:

(1) That the landlord proceed to obtain an audit for the outgoings statements for the years 1994 to 1995, 1995 to 1996, 1997 to 1998 and provide the tenant with copies;

(2) That the landlord adjust the tenant's outgoings for the whole period 1 October 1994 to 14 April 1998 in view of such audited statements and repay the tenant any overpayment;

(3) That the tenant's proportion of outgoings be calculated at 10 per cent of the total and not 11.5 per cent;

(4) The respondent repay the applicant $463.30 being 11.5 per cent of the difference between estimated and audited actual outgoings, that is $4028.72 in respect of the outgoings for the year 1996 to 1997;

(5) If the respondent has failed by the date of the hearing of the application to obtain and serve audited statements on the applicant, then the respondent is to repay to the applicant all outgoings paid by the applicant for those years for which audited statements are not provided, being $2704.50 for the period 1 October 1994 to 30 June 1995 and $3664.50 for the period 1 July 1995 to 30 June 1996.

5 In respect of the orders sought, the applicant relies upon section 10 of the Retail Leases Act 1994 which section provides for the right to compensation for pre-lease misrepresentations, as well as section 11 of the Retail Leases Act 1994, which section provides for the lessee to be given a disclosure statement before entry into the lease within the time specified in that section.

6 The applicant also relies upon section 28 of the Retail Leases Act 1994 coupled with clause 8.7 of the sub-lease in respect of the claim for audited statements of outgoings.

7 The applicant entered into a sub-lease of the premises known as shop 1 in the shopping centre at Lyndhurst Drive, Bomaderry for the period 1 October 1994 until 1 April 1998.

8 The applicant ceased to be a tenant of the premises on 14 April 1998, the lease at that time having expired, but she was continuing on as lessee on a monthly basis until that date when she left the premises themselves.

9 The respondent has objected to the jurisdiction of the Tribunal to hear and determine the applicant's claim on the basis that three years have excluded the claim in any way or description whatsoever, the lease having been entered into in October 1994, and on any basis, that being so, as at that time the three year period commenced to run and has now expired.

10 The provision that the respondent relies upon is contained within section 71(2) of the Retail Leases Act 1994 and provides that a claim may not be lodged more than three years after the liability or obligation that is the subject of the claim arose. Of course, as stated, from October 1994 to the time the claim was lodged is below the three years, the claim as stated being lodged on 9 November 1999.

11 The applicant as stated relies upon the aspect that no disclosure statement was given to her and that the provisions of the lease, provided for the audited statements in respect to the outgoings. She claims repayment of the outgoings and that is the matter to be determined. That is apart from her claim in respect to the pre-lease misrepresentations.

12 The provisions of the Retail Leases Act 1994, in my view, are to be interpreted. Aspects arise as to payments which have been made, presumably, under mistake of law or mistake of fact. Section 12 of the Retail Leases Act 1994 provides under the heading "Lessee Not Required to Pay Undisclosed Contribution" that:

A provision of a retail shop lease that requires the lessee to pay or contribute towards the costs of any finishes, fixtures, fittings, equipment or service is void unless the liability to make the payment or contribution was disclosed in a disclosure statement given to the lessee in accordance with this part.

13 The lessee, as referred to, has made the payments and sought repayment. Section 11 provides for termination of the lease in respect of a disclosure statement not being provided. However, she does not rely upon that and did not terminate the lease, but has sought to rely upon section 12 of the Act as outlined above.

14 I've adverted to mistake of law and mistake of fact. Payments made under mistake of law cannot generally be recovered, subject to exceptions, modifications and qualifications. Those exceptions, modifications and qualifications arise, for instance, in cases where there is a mistake in respect of a private right such as the ownership of property, a mistake about foreign law, or a mistake involving mixtures of law and fact. The same is the position in respect to moneys which are recoverable in respect of mistakes of fact. There are refinements and complexities in that area as well, but in my view, it isn't necessary and it is an approach which would, in my view, lead into error not to simply concentrate upon the Act itself.

15 The Act is a piece of legislation which does cut across legal and equitable rights in various ways. For instance, it very materially cuts across the rights of parties in respect of leases and provides for a lease, for instance, which may arise in the absence of exclusive occupation or in the absence of writing and may be partly in writing and partly oral or may be oral.

16 It deals with the regulation of the rights and obligations of the parties in respect to a retail shop lease. That aspect of the rights and obligations of parties in respect of a retail shop lease is something which lies, in my view, at the very core of what the Retail Leases Act 1994 is aimed at. That is, the creation and adjustment of rights and obligations.

17 In my view, the limitation provisions must be read in the light of that situation. When one looks at the Act itself, one sees that section 63 of the Act provides for the resolution of retail tenancy disputes concerning the liabilities and obligations of parties.

18 That may arise under the lease or former lease and may arise in connection with the use or occupation of the retail shop to which the lease or former lease relates. Those are very wide words. However, the significance of those words is rights and obligations. It is difficult, in my view, to see how a right or obligation arises as an enforceable right or obligation so far as a payment is concerned before the obligation to make the payment arises.

19 The wording of section 71 of the Act refers to the liability or obligation and that is referred to in wide terms and is not cut down in any way, in my view, by the aspects referred to previously in the Act containing the misrepresentation provision in section 10 or the disclosure statement provision in section 11.

20 It is, however, subject to this; that is, the claim must arise. It is difficult to see how the claim arises until such time as the payment is due and has to be made. There is an analogy in respect to a cause of action where the claim is not completed and cannot be made - for instance, in negligence - until the damage occurs.

21 However, in this particular instance, the claim is such that it arises, in my view, upon the obligation to pay it. The consequence of that view is that from the time that the lease was executed until after three years every claim is covered by the particular section I've referred to, that is section 71(2).

22 That means that in this particular case, the Tribunal has no jurisdiction to hear a matter in respect of the period prior to the expiration of the three years but only subsequent to that. That cuts out a substantial portion of the claim of the applicant herself. She may rely, in my view, only upon what takes place so far as claiming an amount which has been paid by her after the period of three years in this particular instance. When I refer to what takes place, I mean what she has paid by way of a repayment in that period.

23 The provisions of section 10 of the Act simply provide for compensation that is attributable to the injured party entering into the lease as a result of the false or misleading statement. It does not contain any provision cutting that down, except what is attributable. If the applicant is able to establish that something was attributable after the three year period upon the above analysis of the particular section, in my view, likewise, she is able to have those matters determined. The position is likewise in respect of the provisions contained in section 28 of the Act and clause 8.7 of the sub-lease referred to above.

24 The result of these reasons is that the Tribunal, in my view, has no jurisdiction in respect of the claims prior to the three year period having expired, but does have jurisdiction in respect of any amount which the applicant is able to establish after that three year period has expired. The representation the applicant, I should mention, relies upon is a pre-lease representation that the outgoings in respect of the video shop are 10 per cent of the total outgoings of the mall as against 11.5 per cent provided for in the sub-lease. The position in respect of the disclosure statement and the audited statements and the overpayments claimed are as set out above.

25 The applicant, in addition to the aspects argued as to jurisdiction, referred to objections to evidence and the jurisdictional arguments in the sense of applying for indemnity costs. The respondent has substantially succeeded in respect of the jurisdictional argument. So far as the matters in respect of the evidentiary aspect are concerned, costs in respect of those matters in my view, can only be properly determined as a discretionary matter in the light of the whole of the circumstances.

26 In my view, the appropriate course is to determine the aspect of costs in the light of the whole of the circumstances and to hear the parties when those circumstances are known. I accordingly reserve any aspect of costs until after the conclusion of the hearing.

27 I will make directions in respect of the further conduct of the proceedings.