Anka (Civic Center) Pty Ltd v Sahyoun

Meeting on 29 March 2012 9On 29 March 2012 there was a meeting between Mr Stringer, Mr Niven and Ms Sahyoun. At first blush, a reading of the affidavits from these three deponents suggests there is a sharp disagreement about what was said at the meeting. However, a closer analysis reveals little real difference between their recollections. Ms Sahyoun stated that during the meeting she requested a right of first refusal in respect of any new lease in the redeveloped centre concerning a pharmacy. Mr Stringer did not recall this being raised by Ms Sahyoun. He recalled that the topic discussed at the meeting was the available options for Ms Sahyoun in relation to her current lease. However, Mr Niven did recall Ms Sahyoun requesting a right of first refusal. I accept that she did so. 10There was disagreement between the witnesses as to whether Mr Stringer stated to Ms Sahyoun that she was in effect trying to protect the goodwill of the pharmacy. This is not a matter I consider necessary to resolve. 11In her affidavit Ms Sahyoun then recounts that the meeting proceeded as follows: "Ms Sahyoun: I'm not going to be like the food shop. If I have to re-locate you should know that it's a long and difficult process as I am dealing with Government bodies. It will take months and I need ample time to find suitable premises and satisfy Governmental requirements after I know I have to go. Mr Stringer: I understand. Ms Sahyoun: I wrote to David [Mr Niven] in February this year requesting a new lease but he has not responded. Mr Stringer: There's no need in spending money on a lease. It is better to go on a month to month basis on the same terms and conditions as are contained in the current lease." 12In cross examination Ms Sahyoun stated that she was not sure if Mr Stringer expressly said that he "understood" or in fact intimated that he did so by nodding his head. Both Mr Niven and Mr Stringer recall that Ms Sahyoun indicated she would need time if notice was to be given because of various government approvals that were required when relocating a pharmacy. Mr Stringer did not accept that he said or intimated that he "understood", as suggested by Ms Sahyoun. 13Both Mr Stringer and Mr Niven recalled that Mr Stringer referred to Ms Sahyoun moving on to a month to month tenancy at the expiry of the lease but that was said as part of a discussion of the options available to her, which included obtaining a new lease with a demolition clause. Ms Sahyoun did not recall this latter aspect being discussed. 14In relation to the question of notice Mr Stringer recalled that, in response to a request by Ms Sahyoun to be given an extended period of notice, he stated: "The landlord will informally keep you aware of the re-development timing. I suggest you keep in contact with Anka or Mainland or both regarding timing of the re-development so that you can continue your plans to relocate your business." 15Mr Stringer recalled Ms Sahyoun stating: "[t]hree months notice would be appropriate" and that he responded: "We will keep you informed of the timing of the re-development and will let you know, ahead of a formal notice to vacate, that we are proceeding with the re-development and will be serving a notice to vacate." 16In his affidavit Mr Niven did not refer to any conversation in these terms or indeed set out any conversation on the topic of notice. 17The significant matter to note about both Mr Stringer and Ms Sahyoun's versions of the parts of the conversation concerning notice is that neither of them amount to the provision of any assurance or promise that a specified period of notice beyond one month would be provided. With Ms Sahyoun's version all that she recalls is that she referred to the need for "ample time" and that Mr Stringer said or intimated that he understood. On her version no specific period was identified, much less requested. In context, any acknowledgement by Mr Stringer that he "understood" her need for further time would not have constituted a promise that it would be provided, but at most merely a concession or acceptance on his part that her grievance was genuine. Mr Stringer recalled that Ms Sahyoun did seek a specific extension and mentioned three months but that he deflected her request by instead only committing to provide her with some form of informal advice ahead of issuing a notice to vacate. His version involves him offering something more concrete than Ms Sahyoun's version. 18I observed all the witnesses give their evidence closely. It was clear they were doing their best to recall these events which occurred some time ago. All made appropriate concessions in cross examination. I am not persuaded that any of the versions represents the precise words spoken. Instead, insofar as the topic of notice is concerned I am satisfied that Ms Sahyoun outlined the difficulties she faced in relocating a pharmacy, especially so far as government and regulatory approvals are concerned. I am also satisfied she stated that one month's notice was insufficient. Further, I am satisfied that Mr Stringer indicated or intimated that he understood those difficulties and that he would endeavour to give her advance notice of the time she needed to vacate. However, I am satisfied that both parties understood that there was no promise or assurance that notice beyond one month would be provided. 19On 30 May 2012 the lease expired. Clause 12.4 of the lease provided that upon its expiry and the continuing occupancy of the premises by the tenant the lease became a monthly tenancy. It was terminable upon one month's notice by either party. 20In September 2012 Mr Stringer states that Ms Sahyoun asked him about a right of first refusal for a new pharmacy in the redevelopment centre. He says his immediate response was that this was unlikely. Ms Sahyoun also recalled a conversation around this time but that Mr Stringer in fact said that the answer was "no". Nothing turns on this difference. 21On 25 September 2012 Mr Stringer wrote to Ms Sahyoun reiterating that she was occupying the pharmacy premises on a "monthly basis" and declining to provide any commitment to her in the form of a right of first refusal. It will be necessary to return to the terms of this letter.

October 2013 22The next event in the history of the proceedings is that it appears that in early October 2013 final, or almost final, planning approval was obtained for Anka's redevelopment plans from the State Government. Shortly afterwards Mr Stringer contacted Ms Sahyoun and arranged to meet her on short notice at the pharmacy before it opened for business. 23The meeting took place on 8 October 2013. Mr Stringer, Mr Niven and Ms Sahyoun attended. Ms Sahyoun's brother, Albert Sahyoun, was in the dispensary when the meeting occurred. He says he was only a few metres away from the others and could hear what was being discussed. Both Mr Stringer and Mr Niven disputed that Mr Sahyoun was in hearing distance, however I accept that he was. The meeting was a matter of potential significance to him as someone who worked in the pharmacy. 24Since the meeting is said to be of particular significance to Ms Sahyoun's defence to Anka's claim it is appropriate to set out her recollections as recounted in her affidavit in detail: "Mr Stringer: We are starting demolition in April next year. Ms Sahyoun: You tell us that every year. Mr Stringer: I know you need notice. If you wish you can vacate immediately. Do you want to trade in December? Ms Sahyoun: Of course I do. That's my busiest month. Mr Stringer: When do you think you can leave? (or he may have said) When do you want to leave? ... Ms Sahyoun: I can't give you an answer right away. I'll get back to you. Mr Stringer: You can vacate in January, early January, but if you need to stay longer you can. Ms Sahyoun: Aren't you going to give me all of this in writing? Mr Stringer: That will follow. Ms Sahyoun: You got me out of bed early to give me this bad news? Andrew are you going or have you given the adjoining shops notices? Mr Stringer: Yes." 25Albert Sahyoun's recollection of the conversation was in the following terms. He recalled Mr Stringer stating, "[w]e are starting demolition on April 1 and we are starting from this corner first". Mr Sahyoun recalled Mr Stringer indicating a portion of the centre which included the pharmacy, and then him continuing: "We know you require notice. You can vacate immediately. Do you want to trade up to Christmas or go until January? If you want to stay on longer you can. Do you know when you want to vacate? Ms Sahyoun: I'll get back to you. Will you be telling this to us again in writing? Mr Stringer: Yes. Ms Sahyoun: Are you giving notices to the adjoining shops? Mr Stringer: Yes." 26Mr Niven recalled Mr Stringer stating that Anka would require possession by the end of December 2013 but if Ms Sahyoun wanted to trade through Christmas she could stay until the end of the first week of January 2014. In cross examination he was taken through Ms Sahyoun's version closely but he adhered to his recollection that Mr Stringer set the end of the first week of January 2014 as the time by which the pharmacy had to be vacated. 27In his affidavit Mr Stringer recalled telling Ms Sahyoun that Anka was proceeding with the development that, "we need you to be vacated by first thing in the new year" and that: "We assume that you would want to trade through the Christmas and New Year period, but if you want to leave sooner, that is okay with us as well." 28Mr Stringer said he told Ms Sahyoun that Anka would be giving formal notice under the lease "in due course". He recounted a discussion with Ms Sahyoun about whether and when notices would be given to other tenants. Mr Stringer recalled the conversation concluding as follows: "Mr Stringer: So I'm correct in that you wanted to stay past new year? Ms Sahyoun: Yes. Mr Stringer: Okay, so for practical sense of moving out I will make the vacation date somewhere a few days after the new year. Thanks. Ms Sahyoun: You got me out of bed for this? Mr Stringer: I apologise for the type of news I am delivering but I assumed it is important to you that you know this." 29In cross examination Mr Stringer agreed with so much of Ms Sahyoun's version that involved him inquiring of her about whether she wanted to trade in December 2013 but he rejected the assertion that he made any reference to Ms Sahyoun "staying on longer" in the sense of staying on past the end of the first week of January 2014. 30The observations I have made concerning the demeanour of the witnesses in relation to the evidence they gave concerning the meeting on 29 March 2012 apply with equal force to the evidence they gave concerning this meeting. Those observations also apply to Albert Sahyoun's evidence. 31The critical issue in relation to this meeting is whether Mr Stringer said anything to the effect that Ms Sahyoun could stay in the pharmacy premises beyond the first week of January 2014 ("... if you need to stay on longer you can"). 32One matter common to all four versions of the conversations is that Mr Stringer announced a time to vacate at a point around the end of 2013 and that he then raised with Ms Sahyoun the question of whether or not she wished to trade through the Christmas period. The tone of the conversations recounted by the witnesses is indicative of a discussion as to whether the premises would be vacated before or after Christmas but not by a period that extends much past that. 33In terms of determining the parties' legal rights there are obvious problems with an alleged representation to a tenant that they can "stay on longer", as no period or event fixing the end of the occupation is identified. However, at the point of determining what was in fact said it seems to me very unlikely that Mr Stringer would make such a vague offer in the context of a very substantial redevelopment of the shopping centre, especially in circumstances where he opened the conversation with what appears to have been a relatively fixed period in his mind as to when Ms Sahyoun would need to leave by. 34I am satisfied that, if there was a reference to Ms Sahyoun's staying "longer", that was only said in the context of her staying longer after Christmas and until the first week of January 2014 and not to her staying on longer after the end of the first week of January 2014. I am not satisfied that Mr Stringer said or represented that Ms Sahyoun could stay in the pharmacy premises beyond the end of the first week of January 2014. 35I note two further points. First, I have not overlooked the fact that in December 2013 Ms Sahyoun told Mr Stringer he had previously told her she could stay longer than early January 2014. It may be that she was confused after the meeting that was held on 8 October 2013. If that was so, she could have clarified the position. I note that on her version of the conversation that occurred on 8 October 2013 she indicated that she would get back to Mr Stringer as to when she could leave but she did not do so. 36Second, there was no doubt that this meeting was a serious occasion so far as Ms Sahyoun was concerned. Mr Stringer called the meeting before the shop opened for business that day. He did so very soon after planning approval had been obtained. In doing so he gave Ms Sahyoun three months advance notice of the time that she had to leave by. All this should have brought home to Ms Sahyoun the need to act with urgency to find other premises. In fact, according to Ms Sahyoun, after this conversation her brother commenced taking steps to locate other premises for the pharmacy.

Subsequent events 37On 4 December 2013 a letter bearing the date 3 December 2013 was delivered to the pharmacy and e-mailed to Ms Sahyoun. It purported to give notice that the tenancy would terminate on 6 January 2014 and required Ms Sahyoun to vacate on or prior to that date. According to Mr Stringer on 9 December 2013 he had a telephone conversation with Ms Sahyoun. He said that his supervisor, Mr Boyarski, overheard the conversation on the telephone, at least from his end. Ms Sahyoun also recalled a telephone conversation around the same time. The common theme of both versions of the conversation was that Ms Sahyoun said she needed extra time and, as I have said, asserted that Mr Stringer had previously told her that she could have more time beyond the first week of January 2014. 38On 11 December 2013 Ms Sahyoun's solicitor wrote to Anka asserting that in giving notice to Ms Sahyoun it had acted oppressively. They asserted a right on her behalf to stay in occupation until 31 March 2014. They threatened to commence proceedings in the ADT. On 13 December 2013 Anka's solicitors responded and rejected their claims. 39On 19 December 2013 Mr Niven e-mailed a letter to Ms Sahyoun. He referred to the notice to vacate and sought to arrange a time on either 6 or 7 January 2014 for the conduct of the final inspection and hand over of keys. 40There were further exchanges of correspondence between the solicitors on 20 and 24 December 2013, parts of which adverted to the possibility of applying to this Court for relief. 41On 3 January 2014, Ms Sahyoun's solicitors emailed Anka's solicitors reiterating that the dispute was appropriate for referral to the ADT which, as I have said, by that time had had its responsibilities assumed by NCAT. The solicitors also asserted that Anka could not re-enter the premises without the issue of a notice under s 129 of the Conveyancing Act 1919, a matter to which I will return. 42It is common ground that Ms Sahyoun did not vacate the pharmacy premises on or before 6 January 2014. On that date Anka's solicitors wrote to her solicitors denying that the s 129 notice was required to be given, but also stating that, even if it was, a notice would be issued the next day. On 7 January 2014, a notice was issued which specified that the relevant breach of the lease was the failure to vacate by the required date. The notice required "rectification" of the breach in the form of Ms Sahyoun vacating the premises by 14 January 2014. 43On 8 January 2014, Mr Niven emailed Ms Sahyoun advising that Anka would refund rent paid by her in respect of the period beyond 7 January 2014. There was further correspondence over the next week, which is unnecessary to describe. 44On the evening of 14 January 2014, Anka engaged a locksmith to lock up the pharmacy premises. The next morning the locks were cut on the direction of Mr Albert Sahyoun and the pharmacy reopened. Ms Sahyoun has remained in occupation of the pharmacy to this time.

These proceedings 45In view of the various matters raised on behalf of Ms Sahyoun, it is necessary to briefly recount the history of these proceedings. On the day that Ms Sahyoun re-entered the premises, namely 15 January 2014, Anka commenced these proceedings seeking possession. It approached the Vacation Judge who stood the proceedings over to 17 January 2014 and made orders for short service. 46The next day Ms Sahyoun commenced proceedings against Anka in the NCAT seeking relief under the RLA. It was not disputed that Ms Sahyoun's lease with Anka was regulated by that legislation. 47The NCAT proceedings were first returnable on 17 January 2014 at 2:00pm. 48On the adjourned date of the proceedings in this court, Ms Sahyoun filed a Notice of Motion seeking the transfer of these proceedings to the NCAT. In the end the proceedings were stood over until 21 January 2014 to allow consideration of what was to occur on the first return of the proceedings in the NCAT. 49The outcome of the first return date in the NCAT is revealed by a notice that was issued by that body and which was tendered before me. It records that the proceedings were adjourned until 2:00pm on 22 January 2014. The notice also records as follows: "2. In the event that proceedings in the Supreme Court No 2014/00013852, in which the respondent is the plaintiff and the applicant is the defendant, are transferred to the Tribunal, the Tribunal will on 22/1/14 make directions and orders for an urgent hearing of the Applications. 3. In the event the Supreme Court declines to make an order transferring the Supreme Court proceedings to the Tribunal then the applications may be dismissed on the next occasion. 4. The Tribunal notes that if the Supreme Court proceedings are transferred to the Tribunal, and subject to the time required for the parties to properly prepare their cases, a hearing in the Tribunal could be scheduled to commence on 24 January 2014 or shortly thereafter." 50Notes 2 and 3 of this document record the effect of s 76(2) of the RLA, namely, that if a retail tenancy or unconscionable conduct claim is lodged with the NCAT and at the time it was lodged an issue arising under the claim was the subject of a claim in civil proceedings before a court then on becoming aware of those proceedings the NCAT ceases to have jurisdiction to hear or determine the issue, unless, inter alia, the proceedings are transferred to the NCAT. All of the parties, and the NCAT, assumed that this provision was engaged by the proceedings that had been filed by Anka in this Court. Thus, the NCAT had to attempt to accommodate the possibility of obtaining an urgent hearing if the proceedings were transferred, while at the same time being cognisant that it appeared not to have jurisdiction to hear the claim until it was transferred. 51On 21 January 2014 the proceedings in this Court were further adjourned to 24 January 2014 "for further consideration". 52There was an attempt from the Bar table to advise the Court of what occurred during the hearing before the NCAT on 22 January 2014 but there was no evidence to that effect. In any event, in the days prior to the matter coming back before this Court on 24 January 2004, the parties exchanged written submissions addressing, inter alia, Ms Sahyoun's Notice of Motion seeking the transfer of the proceedings to the NCAT. Anka opposed the transfer. Its submissions made it clear that it sought to have its proceedings heard on 24 January 2014. The submissions made on behalf of Ms Sahyoun resisted this. They stated that Ms Sahyoun was: "... not ready to meet the Plaintiff's claim and therefore a hearing date of the substantive relief sought in the summons should not at this time be allocated unless further orders and directions are made for case management." 53The matter came before me on 24 January 2014. I was advised that the matter was now before NCAT on Tuesday, 28 January 2014 for directions. Thus it appeared that the hearing date of 24 January 2014 was no longer available. On that day I made various procedural directions and listed the matter for final hearing before me commencing 30 January 2014. I also noted that the parties had agreed to conduct an informal mediation on the afternoon of 24 January 2014 54I was later advised that the mediation had been conducted but had not been successful. The hearing commenced on 30 January 2014 and concluded on 31 January 2014. At the commencement of the hearing Ms Sahyoun was granted leave to file a cross claim which replicated the relief she sought in the NCAT proceedings.

Commercial urgency 55At this point it is appropriate to note the evidence proffered by the NCAT as to the urgency of the proceedings as it may be relevant to the disposition of some of the issues. 56In a letter from Anka's solicitors to Ms Sahyoun's solicitors dated 24 December 2013 it was stated that Anka intended to use the pharmacy as a project sales office in respect of the redevelopment. Anka explained that it proposed to refit the pharmacy and have the sales office open on 1 March 2014. This on-site sales office is meant to be used to generate interest in off-the-plan sales over the month of March. It was then proposed to have, in effect, a weekend sales campaign which would start 29 March 2014. It was intended that on that weekend prospective buyers would enter into contracts to buy off the plan. 57Mr Stringer explained that this latter date had been carefully chosen because any later date would be affected, inter alia, by Easter and the school holidays, which are said to have a depressive effect on real estate activity. It is proposed that the sales office will then be demolished as part of the development. 58Mr Stringer's evidence was that aspects of the financing necessary to start the project are dependent upon the level of off-the-plan sales that are achieved. Ultimately, there was no real challenge to this evidence other than to note that Ms Sahyoun was not advised of the proposal until well after the notice to vacate was issued. 59Further, to the extent that it may be relevant, it appears that Ms Sahyoun has only recently made real progress in obtaining alternative premises. A new site has now been found and various approvals have been obtained. However, as at the date of the hearing she had not received the proposed lease and had not taken up occupation.

The respective cases 60Anka's case is very simple. It submits that the effect of clause 12.4 of the lease was that, after its expiry in May 2012, Ms Sahyoun occupied the pharmacy premises on a monthly tenancy which was terminable on one month's notice. It submitted it gave such notice expiring on 6 January 2014, and that from that date Ms Sahyoun ceased to be entitled to occupy the pharmacy premises. Anka also claimed mesne profits but only quantified them by reference to the amount of rent that was payable for the period of occupation. Ms Sahyoun did not dispute her obligation to pay an amount fixed by reference to the amount of rent that otherwise would be payable. 61Ms Sahyoun's solicitor, Mr Biber, raised six matters on her behalf in response to Anka's claims for possession. First, he contended that the Court could not hear, much less determine, the matter by reason of s 68 of the RLA. 62Second, he submitted that the Court was obliged to transfer the matter to the NCAT by the operation of s 75(1) of the RLA. As part of this, he contended that somehow this Court had acted to deny his client procedural fairness. 63Third, Mr Biber contended that the effect of the representation said to have been made by Mr Stringer on 8 October 2013 was such that one month's notice was insufficient. 64Fourth, he contended that it was unconscionable for Anka to enforce a one month notice period. 65Fifth, he contended that by operation of s 44(3) of the RLA his client was entitled to a tenancy for the period of at least a further six months. 66Sixth, Mr Biber contended that the s 129 notice issued by Anka was invalid. 67I will deal with each point in turn.

Necessity for mediation 68Mr Biber's first point concerned s 68 of the RLA which provides: "68 Disputes and other matters must be submitted to mediation before proceedings can be taken (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. (2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter. (3) This section does not apply to proceedings before a court for an order in the nature of an injunction. (4) This section does not operate to affect the validity of any decision made by a court." 69In Fordham Laboratories Pty Ltd v Sor [2011] NSWSC 706; 81 NSWLR 383 at [38] Price J held that s 68(1) did not prevent a court hearing a matter that was commenced without the dispute being submitted to mediation, provided that by the time it considered the matter the court was satisfied that mediation under Part 8 of the RLA was unlikely to resolve the dispute. No party submitted to the contrary. 70By the time I commenced the hearing of these proceedings, and notwithstanding Mr Biber's submissions to the contrary, I was satisfied that mediation under Part 8 was unlikely to resolve the dispute and I have continued to hold that view since that time. 71By the time the hearing commenced the parties had already had an informal mediation on 24 January 2014. Mr Biber pointed out that a mediation under Part 8 of the RLA would have had the benefit of the mediator whereas the informal mediation conducted by the parties did not. This point has some force, but in this case it does not alter my view. 72The parties have engaged lawyers for over six weeks in what was essentially a dispute about dates all within a relatively narrow range, yet no agreement could be reached. Both parties threatened litigation against each other and then commenced litigation against each other and still no agreement could be reached. 73In all these circumstances I was, and continue to be, satisfied that mediation under Part 8 of the Act was unlikely to resolve the dispute. 74I reject Mr Biber's first point.

Removal of the proceedings to the NCAT 75As noted, Mr Biber submitted that these proceedings should be transferred to the NCAT pursuant to s 75 of the RLA which 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. (4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so. (5) This section does not apply to proceedings by way of an appeal. (6) A court may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section for the transfer of proceedings to the Tribunal to have full effect. (7) This section applies despite anything in Schedule 4 to the Civil and Administrative Tribunal Act 2013 concerning the removal of court proceedings to the Tribunal." 76Mr Biber pointed out that having taken over the functions of the ADT, NCAT was a specialist tribunal with particular expertise in retail tenancy disputes which conducted its proceedings with informality. These considerations are reflected in the general principle enunciated in s 75(2). Mr Biber also pointed to s 60 of the Civil and Administrative Tribunal Act 2013 which provides that in proceedings before NCAT each party is to pay their own costs of the proceedings, but that the Tribunal may award costs if there are special circumstances. On this point the parties provided detailed submissions as to whether this provision was, in substance, likely to lead to a different costs outcome for the parties to a dispute over a retail tenancy, compared to the position if the matter proceeded to a hearing in this court. 77Mr Biber also complained that the manner in which the matter had proceeded in this Court had, effectively, denied his client "procedural fairness". As I understand the submission, he claimed that because this Court refused to deal with his client's Notice of Motion seeking transfer on 17 January 2014 it meant that the NCAT was forced to program a case which it had no jurisdiction to determine. Again, as I understand the contention, it was said that this meant that any resistance by Anka to the NCAT hearing the matter was always going to have the effect of avoiding a hearing date in the NCAT and make it inevitable that the matter would remain in this Court. 78I have recounted what occurred when this matter was listed before me on 24 January 2014. As at that date the position was that the tentative hearing date that had been offered by the NCAT was no longer available. As between the two bodies it then appeared that a hearing date was first available in this Court. 79It must be remembered that the competing positions of the parties was that Anka needed possession to fit out the premises to open the showroom by 1 March 2014, and Ms Sahyoun was seeking to resist vacating until that time. It thus appeared that, unless a hearing date was allocated very quickly, then Anka would effectively lose its case without being heard on its merits. In those circumstances it was simply not in the interests of justice for a party to be deprived of a fair hearing of its case by the effluxion of time, even if that meant there was a different cost regime operating in one jurisdiction compared to another. 80In light of that conclusion, I am not obliged to transfer the proceedings, and I decline to do so. In circumstances where, as at 24 January 2014, this Court could offer the parties the earlier hearing compared with the NCAT, then that consideration warranted the matter remaining here. 81Further, I reject Mr Biber's submission that what occurred involved some form of denial of procedural fairness to his client. There is nothing to suggest that anything this Court did on 17 January 2014 operated to deprive his client of any right to be heard. Further, it must be recalled that it was always open to his client to commence proceedings in the NCAT prior to Anka commencing proceedings in this Court. Had she done so, Ms Sahyoun would have had the "benefit" of s 76(1), if that is the correct description of the operation of that provision. 82For reasons beyond the NCAT'S control, it could not provide a hearing date earlier than this Court could. As noted, it is true that the NCAT offered a tentative hearing date of 24 January 2014. However, as I have stated, Ms Sahyoun had submitted that she was not ready for a hearing in this Court on that very same day. Amongst other matters that had been contended, production of documents was said to be required before the hearing was commenced. It was because of that opposition that I adjourned the matter on 24 January 2014 to a hearing commencing on 30 January 2014 rather than hearing it on that very day. If Ms Sahyoun was not ready for a hearing in this Court on 24 January 2014, then it follows that she was not ready for a hearing in the NCAT on that same day. 83If follows from this that I reject Mr Biber's second point and that his client's Notice of Motion will be dismissed. In so finding I wish to make it clear that I do not mean any criticism of the NCAT in recounting the above. If there is a culprit in these events it is the wording of s 76(1) and 76(2) which operates to deny "jurisdiction" to a relevant Court or the NCAT to hear some matter, or issue, depending on which party to the dispute files proceedings first. In this case those provisions meant that, in endeavouring to assist the parties and the Court, the NCAT was forced to attempt to program a case on an indicative basis because it apparently had no "jurisdiction" to proceed with it. This meant that it could not, and did not, purport to make binding directions on the parties requiring them to prepare for a hearing. 84These provisions appear to allow the parties to play tactical games, depending on which forum they prefer and their preferred date for hearing. If the relevant jurisdictions were co-extensive, then the Courts and NCAT can be trusted to co-ordinate their respective resources to facilitate early hearings. In the ordinary course I expect this would lead to matters being heard in the NCAT rather than the Courts as contemplated by s 75(2).

Representations on 8 October 2013 85As noted, Mr Biber's third point was that the required period of notice was extended by the statement said to have been made by Mr Stringer on 8 October 2013 that Ms Sahyoun could "stay on longer" than the first week of January 2014. When pressed, Mr Biber said that this amounted to a contractual variation of the lease or gave rise to an estoppel or amounted to a waiver. The short answer to this point is that, for the reasons already noted, I do not accept that any such statement or representation was made. Even if it had, I seriously doubt if it was capable of having contractual force. Similarly I doubt that it gave rise to an estoppel, especially in the absence of any established detrimental reliance. However, it is not necessary to consider that further. As for waiver, it is difficult to see at what point Anka was confronted with a choice concerning competing rights.

Unconscionability 86Mr Biber's fourth point was that, in purporting to act on a notice to vacate that allowed only one month's notice, Anka acted unconscionably. Section 62B of the RLA contains a general prohibition on the lessor engaging in unconscionable conduct in connection with a retail lease. Section 72AA, which is found within Division 3 of Part 8 of the RLA, confers on the NCAT a number of powers in respect of proceedings concerning a claim of unconscionable conduct in relation to a retail lease. 87Aside from s 76(1), which is not presently relevant, there is nothing in the RLA which appears to evince an intention that the NCAT's jurisdiction to deal with an alleged breach of s 62B(1) is exclusive of all other courts, including this Court. There may be a question as to whether this Court could exercise the power to grant relief under s 72AA, but there is no reason why this Court could not at least mould some form of injunctive relief if a breach of s 62B(1) was established. 88Both parties were content to accept the discussion of the meaning of unconscionability outlined in the judgment of Spigelman CJ in Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [122]. 89Just prior to the final hearing the points of defence were filed on behalf of Ms Sahyoun which particularised the alleged unconscionable conduct on the part of Anka. I will address those particulars. Particulars (a) to (f) concern Anka's conduct during the period of the lease. Particulars (a) to (c) concern the alleged failure of Anka to properly communicate with Ms Sahyoun about the progress of the development. This was said to have occurred despite Anka stating in its letter of 25 September 2012 that it would "provide information" to Ms Sahyoun so she could "plan accordingly". Particular (d) complains that there was unequal bargaining power between the parties. Particular (e) complains that Anka used unfair tactics in giving Ms Sahyoun one month's notice despite allegedly promising to give her "ample time". Particular (f) alleges that Anka unreasonably failed to disclose the plan to use the premises as a retail display centre until 24 December 2013. 90All of these complaints fall away when regard is had to the findings I have already made. In the meeting on 29 March 2012 Mr Stringer became aware of Ms Sahyoun's logistical difficulties in vacating on one month's notice. Thus, and in response, almost as soon as final planning approval was obtained he convened an urgent meeting at the pharmacy before it opened for business to tell her of the need to vacate and to discuss a suitable date to leave by. In the end result Ms Sahyoun received three months' notice. 91Otherwise it was not demonstrated that there was some material aspect of the development known to Mr Stringer at an earlier point that was not passed on to Ms Sahyoun. 92As for using the pharmacy as a sales office, it is not clear when Anka decided to take that step but, given the advance notice that was provided to Ms Sahyoun, any failure to tell her of that proposed use of the pharmacy was not unconscionable. She did not have a general entitlement to know the details of the development in the period after she ceased to be a tenant. 93Particular (g) complains about Anka's conduct during the informal mediation on 24 January 2014. There is no evidence about what occurred during the mediation. 94Particular (h) refers to the statement in the letter of 25 September 2012 that Ms Sahyoun would be "a continuing tenant". I set out the full terms of that letter in dealing with the next point but in context that statement was clearly a reference to her then status as an on-going tenant on a month to month tenancy. 95Particular (i) complains that Anka served a s 129 notice. As I have explained, it only did so because Ms Sahyoun's solicitor asserted that one was required. 96Particulars (j) and (k) complain that Anka purported to lock out Ms Sahyoun on 15 January 2014. An attempted lock out was not unconscionable in circumstances where the tenancy had expired and she had been given the advance notice that I have described. 97Particular (l) complains about the service of the notice to vacate in December 2013 when trading was busy and relocation was difficult. However, as I have stated, Ms Sahyoun had been given a further advance notice of two months so that in those circumstances the issue of the notice to vacate in December could not be described as unconscionable. 98Particular (m) explains about the sending of communications between lawyers over the Christmas period when Ms Sahyoun's solicitor's office was said to be closed. This does not amount to unconscionable conduct. It was not even inappropriate given the advance notice that had been given and that both parties were issuing threats to commence litigation on an urgent basis. 99Particular (n) asserts that Anka "fabricated" the degree of urgency regarding the construction of the sales office. She asserts that other shops were available but Anka chose to make "an example" of Ms Sahyoun to the other tenants. The rationale of choosing the pharmacy as the site of the sales office and the timing of its construction were explained in evidence by Mr Stringer. His evidence on that topic was not seriously challenged. It was certainly not suggested to him that any aspect of his evidence on this topic was "fabricated". I accept his evidence. This particular has no substance. 100In the end result Anka effectively gave Ms Sahyoun three months advance notice of the time she needed to vacate. By virtue of these proceedings she has obtained a further one month's notice. Ms Sahyoun has not demonstrated that there was any unconscionable conduct on the part of Anka. I reject this point.

Section 44 of the RLA 101Mr Biber contended that Ms Sahyoun was entitled to a tenancy for a period of at least a further six months by the operation of s 44(3) of the RLA. Section 44 provides: "44 Notice to lessee of lessor's intentions at end of lease (1) Not less than 6 months and not more than 12 months before the expiry of a lease, the lessor must by written notification to the lessee either: (a) offer the lessee a renewal or extension of the lease on terms specified in the notification (including terms as to rent), or (b) inform the lessee that the lessor does not propose to offer the lessee a renewal or extension of the lease. Note. A notice under paragraph (b) may include other information as to the lessor's intentions (for example, that the lessor intends to allow the lessee to remain in possession of the shop as a periodic tenant under any provisions of the lease as to holding over, or as a tenant at will). Because such a statement is only a statement of intention, a lessee should be aware that it may not of itself bind the lessor. (2) An offer made for the purposes of subsection (1) (a) is not capable of revocation for 1 month after it is made. Note. This allows the lessee 1 month to decide whether to accept the offer. The lessor may agree to hold the offer open for longer than 1 month. The parties may also negotiate a new lease. (3) If the lessor fails to give a notification to the lessee as required by this section, the term of the lease is extended until the end of 6 months after the lessor gives the notification required by this section, but only if the lessee requests that extension by notice in writing to the lessor given before the lease would otherwise have expired. (4) During any extension of the lease under subsection (3), the lessee may terminate the lease by giving not less than 1 month's notice of termination in writing to the lessor. (5) This section does not apply to a lease containing an option to renew or extend the lease or that is the subject of an agreement for the renewal or extension of the lease. (6) If a retail shop lease is for a term of 12 months or less, the periods of 12 months and 6 months in this section are shortened to 6 months and 3 months respectively." 102It was not seriously disputed that Anka did not comply with s 44(1) prior to Ms Sahyoun moving on to a monthly tenancy in May 2012, that is, Anka did not give Ms Sahyoun the requisite notice during the period 31 May 2011 to 30 November 2011. The consequences of that are addressed by s 44(3). On its face it appears that Ms Sahyoun obtains an extension of her lease for a period of six months starting when notification conforming with s 44(1) is given, provided that before 31 May 2012 Ms Sahyoun requested an extension by notice in writing to the lessee. Mr Biber submitted that such an extension was requested by Ms Sahyoun's e-mail of 25 January 2012 sent to Mr Niven. 103Counsel for Anka, Mr Mobellan, disputed that. He firstly noted that the e-mail was sent to the managing agent not the lessor, and secondly that it made no reference to s 44. Neither of those points has any force. Mr Niven was the lessor's agent, and in any event the e-mail was passed on to Mr Stringer. 104In relation to the second point, the parties were not able to refer me to any relevant authority concerning s 44. However, there is nothing in the RLA which suggests that a request under s 44 (3) by a tenant should expressly refer to the section. There is no reason apparent why such a construction should be adopted. I am satisfied that Ms Sahyoun made a valid request under s 44(3). 105Mr Mobellan submitted that his client eventually gave written notification in accordance with s 44(1)(b), being the letter of 25 September 2012 that I have noted above. He further submitted by giving that notification at that time, it meant that, at most, Ms Sahyoun obtained a statutory extension for a further six month period from 25 September 2012 which has now well and truly expired. The latter step did not appear to be disputed. However Mr Biber contended that the letter of 25 September 2012 did not inform Ms Sahyoun in terms of s 44 (1) (b), namely that Anka did not "propose to offer the lessee a renewal or extension of the lease". 106To address this it is necessary to set out the letter in full. It stated: "Dear Monique: Re: Lease for Pharmacy, 23 Lindfield Ave, Lindfield. I am writing in response to our recent conversation regarding the above mentioned Lease and in particular the future of the Lindfield Shopping Arcade. As you are aware from our past conversations and my letter to you dated 2 February 2012, we are currently working towards the demolition and redevelopment of the Lindfield Shopping Arcade including 23-25 Lindfield Ave. In relation to the current Lease, the Terminating Date was 30 May 2012 with no Option to Renew and therefore you are currently occupying the Property on a monthly basis. You have requested an agreement from us to have a 'first right of refusal' over any new pharmacy tenancy that may be included within the new re-developed shopping centre. At this stage, we cannot make any agreement or commitment regarding future leasing with any current tenant within the redevelopment. We look forward to you continuing as a tenant within the current shopping centre and should you wish to discuss your current lease, please make contact with our property manager, Mr. David Niven at Mainland Industrial. Yours sincerely (signed) Andrew Stringer Cc: Mainland Industrial - David Niven" 107As previously noted the letter records Ms Sahyoun's current status as a tenant "on a monthly basis". It records that the lessor is "working towards the demolition and development" of the site, and makes it clear that no commitment of any kind has been or is to be given to existing tenants, including Ms Sahyoun. Of course the tenor of the letter assumes that the parties have already discussed or are aware that an existing lease would not be renewed or extended. Nevertheless, by ruling out any further commitment in my view the letter does inform Ms Sahyoun of the fact that Anka did not propose to offer her a renewal or extension of her lease. 108It follows that I accept Mr Mobellan's submission concerning that letter, namely that the statutory extension of her lease created by s 44(3) expired in March 2013 and does not assist Ms Sahyoun. 109I reject Mr Biber's fifth point.

Conveyancing Act 1919 (NSW), s 129 110I have already described the events surrounding the issue of the notice under s 129 of the Conveyancing Act by Anka on 7 January 2014. Mr Biber submitted that the notice did not comply with s 129. Mr Biber referred me to the judgment of Bergin J (as her Honour then was) in Easy Buy International Pty Ltd v Macquarie Goodman Property Services Pty Ltd [2006] NSWSC 148 ("Easy Buy"). In Easy Buy her Honour held that a tenant holding over on a month to month tenancy was still entitled to the protection of s 129, notwithstanding the exclusion in s 129(6)(a) for tenancies of less than a year. This was so because her Honour found in that case that the period of the original lease should be included in the assessment of the length of its term for the purposes of applying s 129(6)(a) (at [74]). 111Accepting the application of Easy Buy to this case it is still nevertheless unnecessary to consider the alleged deficiencies in Anka's s 129 notice. Even if the notice was rendered invalid s 129(1) does not operate on Anka's claim for relief in these proceedings. Anka is not seeking to exercise and enforce any right of re-entry or forfeiture, "for a breach of any covenant or agreement, express or implied in the lease". It simply claims that the lease has expired on the giving of the requisite notice and that expiry was not a consequence of any alleged breach by Ms Sahyoun (see Melacare International Ltd v Daley Investments Pty Ltd [1999] NSWSC 496 at [12] (per Bryson J)). 112On Anka's case Ms Sahyoun ceased to have a right to occupy the pharmacy on or about 6 or at least 7 January 2014 and it did not acquiesce in her subsequent re-entry. It follows from the above that I uphold the case that it brings. No aspect of the relief sought by Anka seeks to enforce any remedy which is consequential on any breach of the lease by Ms Sahyoun. 113I reject Mr Biber's sixth point.

Relief 114It follows that I have rejected all of Ms Sahyoun's suggested bases for resisting Anka's claims for possession. The orders that I will make shortly will include an order dismissing Ms Sahyoun's cross claim and the notice of motion seeking transfer to the NCAT. I have already noted that an amount equal to the rent payable will be awarded to Anka. Order 2 of the summons seeks an order for delivery up of possession and I will shortly make this order. 115I will now hear the parties as to costs and any consequential orders. [Parties addressed.] 116I have heard the solicitor for the defendant on the question of costs. He also referred me to the detailed submissions that were put on the question of costs that I referred to above. Those submissions were principally directed to the topic of whether there was a different costs regime in the NCAT compared to this Court. The effect of his submission is that had the plaintiff proceeded in the NCAT by filing an application in advance of Anka's proceedings in this Court, then in all likelihood she would not be subject to a costs order. In the end all this really means is that if the circumstances were different the costs outcome would be different. The parties had the benefit of experienced legal advisors and had to make considered decisions about what bodies they would approach and the attitude they would take in terms of re-entry. In the result Anka filed proceedings in this Court. This Court has heard and determined a claim in its favour. There is, in my view, no reason to depart from the usual costs order that is made when a party such as the plaintiff is successful. 117Accordingly, I make orders that reflect Anka's success. I will order the defendant to pay the plaintiff's costs on the ordinary basis. 118I make orders 1 to 4 in the document entitled "Orders" which is signed by me and dated today. I will not make order 5. Instead I will stand over the question of whether the plaintiff can enforce the defendant's undertaking as to damages to the Registrar in Equity's list on Tuesday, 18 March 2014 at 9:00am for directions.

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: 07 February 2014