Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd

Supreme Court of NSW|2013-03-26

Introduction 1In these proceedings, which were instituted by an Application for Original Decision ('the Application') filed on 15 October 2012, the Applicant, Brashes Convenience Store Pty Ltd, alleges that it occupied premises owned by the Respondent, Pitt & Castlereagh Pty Ltd, in the Central Business District of Sydney, pursuant to a lease ('the Lease') commencing on 20 November 2006. 2The Applicant further alleges that by virtue of provisions of the Retail Leases Act 1994 ('the RL Act'), the duration of the Lease was five years; that the Respondent unlawfully terminated the Lease by serving a Notice to Quit dated 16 October 2009; that having regard to the circumstances in which the Notice was served, the Respondent thereby engaged in unconscionable conduct; and that the Applicant is entitled to damages for losses suffered on account of the termination and to declaratory relief. 3The present decision deals with two applications made by the Respondent. At a directions hearing on 14 March 2013, the Tribunal ordered that they be heard in conjunction. 4One of these applications is for a decision that the Tribunal lacks jurisdiction in these proceedings. The other is for an order, in the alternative, that the proceedings be transferred to the Supreme Court. 5Under section 24A of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), each of these applications may be heard and determined by a judicial member, sitting alone. 6The Respondent's two applications came on for hearing before me on 26 March 2013. Mr Soltan, who is a director of the Applicant, appeared for the Applicant. He claimed that he did so in the capacity of agent, as permitted by section 77C of the RL Act. Mr Cornish, of Hegarty and Elmgreen Lawyers, appeared for the Respondent. Both representatives provided a comprehensive and helpful set of written submissions, which they supplemented orally.

The Respondent's claim of lack of jurisdiction 13This claim by the Respondent was based on section 73(1) of the RL Act, which states:- 73 Monetary limit on Tribunal's jurisdiction (1) The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the amount or amounts (if any) of money to be declared not to be due or owing, and (c) the value or values (if any) of the work to be done or the services to be performed, under or by virtue of the order or orders would exceed $400,000 or such other amount as may be prescribed by the regulations, whether on a balance of account or after set-off or otherwise. 14The Respondent's argument incorporated the following four propositions:- 1. The amount claimed in the Application, when calculated by reference to evidence that the Applicant has filed, significantly exceeds the Tribunal's jurisdictional limit of $400,000 established by section 73(1). 2. If the Tribunal were to uphold the Applicant's claim as set out in the Application, it would be obliged to award the full amount of damages claimed. 3. In the absence of any statutory provision permitting applicants who have instituted Tribunal proceedings under the RL Act to abandon the excess of any money claim over $400,000, this form of 'abandonment' is not permitted. 4. For these reasons, the present proceedings fall outside the scope of the Tribunal's jurisdiction. 15In seeking to establish the first of these propositions, Mr Cornish relied on assertions made in three documents that the Applicant had filed: the Application, an affidavit by Mr Soltan and a valuation report relating to the Applicant's business. These assertions were to the following effect: (a) the Applicant was entitled to the return of part of a security bond (together with interest) that it had paid: (b) the Applicant, through its director Mr Soltan, had expressed an intention to continue carrying on business in the premises until 19 November 2011, the date of expiry of the Lease (as extended by the RL Act); and (c) it was therefore also entitled to damages representing either (i) the value of the business as at the date of termination of the Lease (17 November 2009) or (ii) the amount of the profits that, but for the termination, it would have generated during the period of two years between this date and 19 November 2011. 16Mr Cornish submitted that the valuation report and certain statements in Mr Soltan's affidavit relating to the profitability of the business showed that the total amount claimed by the Applicant clearly exceeded $400,000. 17In putting forward the second proposition, Mr Cornish invoked a well-known principle, laid down in Robinson v Harman (1848) 1 Exch 850 at 855 (154 ER 363 at 365) and held applicable to leases by the High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 at [13]. This is that 'where a party sustains a loss by the reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed'. 18Mr Cornish submitted that if the Tribunal were to uphold the Application in full, it would be obliged to give effect to this principle of assessment of damages and to award the full amount claimed by the Applicant. This would be the correct outcome as regards both the Applicant's claim based on a breach of the Lease and its unconscionable conduct claim. The Tribunal could not treat the quantification of damages as a matter within its discretion, even if the Applicant requested it to do so. 19In this specific context, Mr Cornish referred to provisions within sections 72(1)(a) and 72AA(1)(a) of the RL Act (relating respectively to retail tenancy claims and unconscionable conduct claims), empowering the Tribunal in such proceedings to make a range of orders including 'an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution...' He referred also to the following observation of the Tribunal in ACN 079 830 596 Pty Ltd v Wallis Lake Fishermans Co-Operative Ltd [2010] NSWADT 30 at [19], made with express reference to the power conferred by these provisions of the RL Act:- 19 It is plain that whilst this power is expressed in general terms it must be intended that it be exercised in accordance with general law principles. The general principle governing the assessment of compensatory damages in both contract and tort is that the plaintiff should receive the monetary sum which so far as money can, represent a fair and adequate compensation for the loss or injury sustained by reason of the defendant's wrongful conduct. 20The third proposition, Mr Cornish submitted, receives direct or indirect support from a number of authorities, including the following. 21Three cases decided in the Supreme Court of New South Wales around the turn of the last century - Ex parte Buckley (1870) SCR 72, Ex parte Brough (1874) SCR 368 and Ex parte Noel (1905) 5 SR (NSW) 445 - established that a plaintiff suing in a Small Debts Court with respect to a debt exceeding the limit of the Court's jurisdiction could not limit his or her claim to an amount within this jurisdiction, because there was no statutory provision permitting a plaintiff to abandon any excess amount. The judgments in each of these cases referred to the need to prevent the 'splitting of claims'. 22Section 23(1) of the Civil Procedure Act 2005 expressly permits a plaintiff whose cause of action is for more than the court's jurisdictional limit to 'abandon the excess by a statement to the effect in the originating process'. The commentary on this provision in Ritchie's Uniform Civil Procedure NSW states that it is 'directed at reversing the effect of decisions which had held that parties could not overcome the jurisdictional limits of statutory courts by attempting to set-off or abandon parts of their claims'. But section 23 does not apply to the Tribunal at all, nor does any other comparable legislative provision (either within the ADT Act or outside it). The courts to which section 23 applies are the District Court and the Local Court. 23In three cases decided under the RL Act, the Tribunal, constituted on each occasion by Fox JM, made statements indicating that if proceedings under this Act turned out to involve an amount exceeding the Tribunal's jurisdictional limit, the Tribunal could not continue to deal with them. 24In the first of them, World Best Holdings Pty Ltd v Awad [2001] NSWADT 140, the Tribunal said at [19]:- 19 I note that matters come to this Tribunal in two ways, either by an Applicant selecting the Tribunal, or alternatively, by either party, having commenced litigation elsewhere, electing to be within the Tribunal. I note that the legislation establishes no mechanism for leaving the Tribunal, and that seems to me to be the end of the matter as far as the Respondent is concerned, but for one obvious exception:- If a party were to establish that the relief it seeks is greater in aggregate money terms than the present $300,000.00 limit, this Tribunal would have no alternative but to terminate the proceeding before it. 25In Keighery v Nodnarb Investments Pty Ltd [2005] NSWADT 241, the Tribunal, in circumstances outlined later in this decision, made an order under section 76A of the RL Act transferring the applicant's unconscionable conduct claim to the Supreme Court. At [6], it said that 'if proceedings for a Retail Tenancy Dispute turn out to involve much more than $300,000.00, a party would appear to have no choice but to discontinue in the Tribunal...' 26In Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91, which also involved an application for transfer of proceedings under section 76A of the RL Act, the Tribunal said at [17]:- 17 I am satisfied that in order to fall within Section 76A a party must be able to demonstrate that there is an aspect to the dispute between the parties which the Tribunal has no power to resolve. That aspect could be the fact that there is a likelihood of an order for payment of more than the jurisdictional limit, or the actual possibility of the need for an order which the Tribunal has no statutory power to make (such as the rectification of a lease which is not consented to by the parties). Section 76A is not available in circumstances where nothing has been raised to indicate that the needs of the parties cannot be addressed within the parameters of Sections 72, 72AA and 73. Apart from the alleged complexity of the matter, nothing relevant has been put to me in this regard, and so I hold that the threshold set by Section 76A (2)(a) "may be more effectively and appropriately dealt with in the Supreme Court" has not been satisfied. 27At the hearing, I pointed out that this last decision of the Tribunal had been the subject of an appeal to the Supreme Court. In his judgment dismissing the appeal (World Best Holdings Ltd v Sarker and Anor [2006] NSWSC 1101), Malpass AJ endorsed (at [44]) the Tribunal's ruling that the requirements of section 76A(2)(a) had not been satisfied. At [20], however, he observed that there 'clearly' had been error on the part of Fox JM 'including certain of what was said by him in paragraph 17 of the reasons for decision'. Malpass AJ did not specify what aspect of this paragraph he believed to be erroneous. 28In Donelan v Incorporated Nominal Defendant [1973] VR 490, in the course of discussing provisions limiting the jurisdiction of county courts in Victoria to specified amounts, Newton J said (at 509):- If it were shown that at the time when a plaintiff commenced a common law personal action in the County Court he in fact was then seeking damages in excess of the relevant limit... then he would be guilty of an abuse of the process of the court, and it would be proper for the court to strike out his action... 29On this question of whether or not an applicant can 'abandon the excess' when bringing a claim under the RL Act to recover more than the amount specified in section 73(1), Mr Cornish very properly brought to my attention four decisions that appear to be in opposition to his argument. Two of them are decisions of this Tribunal and two are decisions of the Supreme Court relating to the jurisdiction of the Consumer Trader & Tenancy Tribunal (the 'CTTT'). 30In Andjoy Pty Ltd v Shand [2005] NSWADT 192, the Tribunal, constituted yet again by Fox JM, delivered a brief ex parte decision in which the following are the key components:- 2 The Affidavit evidence alleged an amount of rent and outgoings of $312,773.40 and interest pursuant to the relevant provisions in the lease, but the Applicant formally waived the prime amount in excess of $300,000.00 and claimed an order for $300,000.00 under Section 72 of the Retail Leases Act 1994 plus interest under Section 72A.... 3 Clearly I have power to award interest, and would be ready to do so at the relevant District Court rate (see Section 72A(3)). The method of calculation of such interest, being on an ever increasing capital sum, may be a matter of some debate, however that does not arise in the circumstances, because I am satisfied that Section 73 prevents me from making an order at all... [The Tribunal then reproduced section 73, in the form that it then took. The jurisdictional limit at that time was $300,000.] 4 The Order which I might make for the prime amount, the interest claimed, or for that matter costs (if the facts allowed it) seem to me all to be encompassed within "an order or orders in respect of a particular Retail Tenancy Claim" and so cannot total more than $300,000.00. 5 Were I to grant the Application, making an Order for the payment of $300,000.00 and another Order for the payment of interest, then I am satisfied that both Orders would be a nullity because they would exceed the jurisdiction limit of the Tribunal. 6 Clearly, when the Applicant elected to stay within the Tribunal, and abandoned the amount of $12,773.00, it also abandoned any right to claim interest. 7... 8 Pursuant to Section 72(1)(a) the Respondent is ordered to pay the Applicant $300,000.00 31In Kindful (Australia) Pty Ltd v Country Villa Holdings Pty Ltd [2006] NSWADT 224, the Tribunal, constituted by Molloy JM said (at [154]):- 154... The damages claimed are in the sum of $449,343.29 exclusive of interest on rent from December 2005 - June 2006. But the jurisdictional limit of this Tribunal is $400,000.00 (Retail Leases Act 1994 section 73(1)) and in those circumstances the full claim of the Respondent must be allowed in that sum. 32In both of the Supreme Court cases to which I was referred, the following provisions (subsections (1) and (2) of section 14) of the Consumer Claims Act 1998 were applicable to consumer claims brought in the CTTT:- 14 Limitation on Tribunal's jurisdiction to make orders (1) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant or, where there are two or more claimants, in favour of those claimants if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the work to be performed, or the services to be supplied, and (c) the amount or amounts (if any) of money to be declared not to be due or owing, and (d) the value or values of goods (if any) to be delivered or replaced, under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description. (2) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders referred to in section 8 (2) if the amount or the total of the amounts (if any) to be paid under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description. 33In the first of these cases, Poat v Consumer Trader & Tenancy Tribunal [2004] NSWSC 947, Master Malpass (as he then was) held at [29] that the appeal from a decision of the CTTT that was before him was 'doomed to failure'. He then said:- 29... Before concluding this judgment, it may be helpful to clarify one matter. It is not material to the question of the tenability of this appeal. However, it seems to me that a distinction should be drawn between lack of jurisdiction to entertain a claim and the monetary limit of the power had by the Tribunal to make an order. The Tribunal may entertain a claim in an amount that exceeds the power that it has to make an order, but it can order no more than the monetary limit of that power (in the present case, that limit is $25,000). It is open to an applicant to waive any excess. 34The second case, Prestige Residential Marketing Pty Ltd v A & M Short Investments Pty Ltd & Anor [2005] NSWSC 485, also involved an appeal from the CTTT. At that time, Regulation 6 of the Consumer Claims Regulation 1999 specified $25,000 as the prescribed amount (subject to certain exceptions) for the purposes of section 14 of the Consumer Claims Act 1998. In dismissing the appeal, the Court (constituted again by Master Malpass) said at [13 - 19]:- 13 In a general sense, it may be said that there were two broad areas of dispute between the parties. The first consideration was whether the monetary jurisdictional limit of the Tribunal was determined by the amount claimed or the amount of the order that could be made... 14 Save for the claims that are excluded thereby, regulation 6 prescribes a jurisdictional limitation in the sum of $25,000.00. The sum of $25,000.00 is prescribed therein for the purposes of s14 of the Act. What s14 does is to impose a limitation on the making of orders. This appears unambiguously from both the heading and the content of the section. 15 In my view, the imposition of such a jurisdictional limitation does not take away jurisdiction altogether in respect of a claim made in a sum in excess of the amount of $25,000.00. The Tribunal has jurisdiction to make an order so long as the quantum of the order does not exceed the prescribed amount of $25,000.00. A party who brings a proceeding in the Tribunal which is subject to such a jurisdictional limitation can only obtain an order in respect of a sum that does not exceed an amount of $25,000.00. 16 In the present case, the first defendant is not seeking an order for payment of money. It is seeking an order declaring that an amount of money is not due or owing by it to the plaintiff. If it continues with the application in the Tribunal the relief that it can obtain is restricted to the sum of $25,000.00. 17 The application in its present form may be technically deficient. It is open to the first defendant to make application to amend the application. If it did so, claiming relief that did not exceed $25,000.00, the argument advanced by the plaintiff in this appeal would disappear. 18 As I understand the position, the first defendant is content to proceed in the Tribunal on the basis that it cannot obtain relief in excess of $25,000.00. 19 In these circumstances, it is unnecessary to dwell on the second of the two considerations... 35Mr Cornish argued that this interpretation of section 14 of the Consumer Claims Act 1998 is not applicable to section 73 of the RL Act, at least in its application to claims for damages, because the provisions in the former Act (sections 8 and 13) relating to awards of damages in consumer claims differ in two material respects from sections 72(1)(a) and 72AA(1)(a) of the RL Act. The first of these is that section 8 does not limit the powers of the CTTT to making orders for the payment of money 'by way of damages, debt or restitution'. Secondly, section 13 requires the CTTT to make 'such orders as, in its opinion, will be fair and equitable to all the parties to the claim' (see subsection (1)) and lists considerations to be taken into account in determining what is 'fair and equitable'. 36Mr Cornish pointed out also that the Court's observations on section 14 in Poat were obiter.

Discussion and conclusions on jurisdiction 37In my judgment, this application by the Respondent for a decision that the Tribunal lacks jurisdiction in these proceedings is misconceived and must be dismissed. My reasons for coming to this conclusion are based to a significant degree, though not wholly, on the submissions advanced by Mr Soltan. 38My conclusion that Mr Cornish's arguments must fail is based on the terminology of section 73 of the RL Act, on the case law dealing both with this section and with comparable provisions and on important considerations of policy. I will address these three factors in turn. 39Section 73 does not purport to limit, either expressly or by implication, the amount of monetary relief that an applicant can claim in Tribunal proceedings under the Act. Instead, it imposes an upper limit on the amount that, under the order or orders made by the Tribunal with respect to a particular retail tenancy claim or unconscionable claim, may be required to be paid, declared not to be due or owing, or involved as the value of work done or services performed. It says nothing, in its express terms, as to the amount that an applicant may claim. 40As to the case law, the decisions on which my conclusion is founded bear directly on section 73 or on comparable statutory provisions. The most authoritative of these, being at Supreme Court level, are the two decisions of Master Malpass relating to section 14 of the Consumer Claims Act 1998. 41In Poat v Consumer Trader & Tenancy Tribunal [2004] NSWSC 947, the learned Master drew the distinction, which I have just outlined, between provisions limiting the amounts of claims made to a court or tribunal and provisions limiting the scale of monetary relief that may be ordered. In Prestige Residential Marketing Pty Ltd v A & M Short Investments Pty Ltd & Anor [2005] NSWSC 485, he applied this distinction in the course of ruling that even if a claim is, or may on the face of it be, for an amount greater than the jurisdictional limit, it is open to the applicant to adjust the claim to fit within this limit, by abandoning the excess. 42The grounds on which Mr Cornish sought to distinguish between the Tribunal's power to award damages under the RL Act and the equivalent power of the CTTT are not convincing. It may well be (as I pointed out during the hearing) that the phrase 'by way of damages, debt or restitution' in sections 72(1)(a) and 72AA(1)(a) of the RL Act is sufficient in itself to relieve the Tribunal of any duty (if such exists) to award damages for breach of a lease according to no other principles than those stipulated in Robinson v Harman and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8. But I do not need to determine this point, for the following reason. The question whether it is obligatory for the Tribunal to apply those principles, and those principles alone, when awarding such damages is quite distinct from the question whether an applicant can abandon the excess in a claim that has been filed in order to ensure that the Tribunal, when it reaches the stage of making orders, will operate within the limit imposed by section 73. 43In responding to Mr Cornish's submission that because section 23 of the Civil Procedure Act 2005 does not apply to the Tribunal the step of 'abandoning the excess' is not available to applicants in Tribunal proceedings, Mr Soltan argued that under section 73(1) of the ADT Act, which empowers the Tribunal to 'determine its own procedure', the Tribunal may, in effect, incorporate measures such as section 23 within its modus operandi. I am not convinced by this argument, because I do not regard this question as one of procedure only. 44Equally, however, I am not convinced by Mr Cornish's contention that, in the absence of a provision such as section 23, the early Supreme Court decisions on which he relied rule out any abandonment of the excess. I hold this view of the matter for two reasons. 45First, it would appear that the provisions to which these decisions related (which unfortunately are not quoted in the reports) limited the amounts for which claims could be made in Small Debts Courts, not the amounts of the orders that such Courts could make. For reasons that I have already outlined, this distinction is crucial. 46Secondly, a close reading of these decisions, notably Ex parte Buckley (1870) SCR 72, reveals that they were concerned with creditors who claimed less than they were owed in order to invoke the jurisdiction of a Small Debts Court, while seeking at the same time to maintain the right to bring a second claim for the balance. What the decisions sought to preclude was 'a splitting of the cause of the action' (to quote from the judgment of Stephen CJ in Buckley at 74). 47The important point, however, is that 'abandoning the excess' in a cause of action is quite different from 'splitting' the action. While it involves claiming part of the amount alleged to be owing in order to invoke the limited jurisdiction of a court or tribunal, it also involves relinquishing any right to claim the rest of this amount. 48As to the conflicting decisions of this Tribunal on 'abandoning the excess', it is sufficient to point out that in the two decisions in which the validity of an 'abandonment' had to be determined - Andjoy and Kindful - it was held to be a course open to the applicant. The suggestions to the contrary in other decisions were obiter only. Moreover, the reasoning in one of these other decisions (Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91) was the subject of criticism in the Supreme Court. 49The major policy considerations that, to my mind, militate strongly against acceptance of Mr Cornish's arguments may be briefly summarised as follows. Those arguments would leave it open for applicants under the RL Act who wished their matter to be heard in the District Court or the Supreme Court, instead of the Tribunal, to assert that the amount owed to them by the respondent exceeded $400,000. At this point, the Tribunal would be faced with a most undesirable set of alternatives. It would either have to accept the applicant's assertion as to the scale of the claim at face value, irrespective of whether the factual material and expert opinion adduced in support of it had any credibility, or be compelled, at a very early stage of the proceedings, to investigate the truth and significance of this evidence. This investigation would have limited utility if and when the matter went to trial, because it would be conducted before any opposing evidence had been filed. 50Similarly, Mr Cornish's arguments would enable respondents to scrutinise the applications made against them, along with any evidence that the applicant has filed - as indeed the Respondent has done in this case - and to object to the Tribunal's jurisdiction if the total amount claimed was or appeared to be in excess of $400,000. The same undesirable alternatives would confront the Tribunal. 51In either of these situations, the Tribunal would on occasions be bound to decline jurisdiction or to make an order for transfer to the Supreme Court under section 76A (so long as the proceedings included an unconscionable conduct claim). The proceedings would then be heard in the District Court or the Supreme Court. It might then emerge that the claim had been inflated well beyond its true scale in the application and the accompanying evidence, and that it was entirely inappropriate to be brought in either of these Courts. 52As Mr Soltan emphasised in his submissions, these consequences are entirely contrary to the policy underlying section 75(2) of the RL Act. This provision states that when a court in which proceedings under the Act have been brought is determining an application under section 75(1) for transfer of the proceedings to the Tribunal, the court must 'have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court'. 53On account of the conclusion that I have reached, I do not need to review the competing arguments on the question of whether or not the Application and the evidence that the Applicant disclose a claim for monetary relief exceeding $400,000.

The Respondent's application for transfer of the proceedings to the Supreme Court 54This application by the Respondent is based on section 76A of the RL Act, which states:- 76A Removal of proceedings to Supreme Court (1) A party to proceedings before the Tribunal for an unconscionable conduct claim, or partly for an unconscionable conduct claim and partly for a retail tenancy claim, may apply to the Tribunal to have the proceedings transferred to the Supreme Court. (2) The Tribunal must transfer the proceedings if the Tribunal is satisfied that: (a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court, and (b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal. (3) The Supreme Court has jurisdiction to hear and determine proceedings transferred to it under this section and may make any orders and do anything that the Tribunal may do in determining an unconscionable conduct claim or retail tenancy claim, as the case requires. (4) The Supreme Court may exercise all the functions that are conferred or imposed by or under this or any other Act on the Tribunal to determine the unconscionable conduct claim. 55Mr Cornish advanced two arguments in support of this application. 56The starting-point for the first of these arguments was the proposition that, for reasons already outlined, the Applicant's claim exceeded the Tribunal's jurisdictional limit of $400,000. Mr Cornish maintained that this limit provided an indication of the maximum 'size' of retail tenancy proceedings that should be determined in the Tribunal, and that any proceedings of larger 'size' should either be transferred under section 76A or, if constituted only by a retail tenancy claim, should be struck out. 57Mr Cornish's second argument, which he described as 'subsidiary' only, was that the present proceedings gave rise to 'novel questions of law', which the Supreme Court, rather than the Tribunal, was best equipped to decide. Those questions involved the construction of the provisions within section 6A of the RL Act on which the Applicant bases its claim that the term of the Lease was extended by section 16 to five years. 58Mr Cornish relied on two cases that I have already mentioned, Keighery v Nodnarb Investments Pty Ltd [2005] NSWADT 241 and Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91. 59In 2005, when Keighery was decided, section 76A(1) of the RL Act did not include the phrase 'or partly for an unconscionable conduct claim and partly for a retail tenancy claim'. In consequence, as the Tribunal pointed out at [5], only unconscionable conduct claims could be transferred to the Supreme Court. A retail tenancy claim could not be transferred, even if it formed part of proceedings that included an unconscionable conduct claim. 60In the proceedings with which the Tribunal was concerned, the applicant lessee filed first a retail tenancy claim, then an unconscionable conduct claim relating to the same subject matter. The evidence filed by the applicant raised what the Tribunal at [2] described as a 'strong possibility that, if successful,' the latter claim would 'raise an entitlement under Section 72AA to an Order for payment of substantially more than $300,000.00, well over the jurisdictional limit of this Tribunal as set by Section 73'. The applicant sought an order under section 76A(1) transferring this claim to the Supreme Court. 61The Tribunal granted this application. It explained its reasons for so doing at [10 - 11]:- 10 The Application to transfer the Retail Claim will have to be denied; I am not satisfied that I have the power because I am not satisfied that the papers before me indicate any issue of unconscionable conduct. The Unconscionable Claim as pleaded does appear to raise a prospect of an issue of unconscionable conduct and so is properly described as an Unconscionable Conduct Claim to bring it within Section 76A. 11 Although hardly satisfactory as evidence, as I have indicated at the beginning of these Reasons, that which has been filed over the signature of Mr Onisforou does seem to me to raise the prospect of the Unconscionable Claim exceeding the jurisdiction of the Tribunal and consequently I am satisfied in accordance with Section 76A(2)(a). Further, nothing appears to arise, nor has anything been raised by the Lessor which would enliven the test in subsection 76A2(b) and consequently I am obliged to make the order for transfer. 62At the time when Sarker v World Best Holdings Ltd, World Best Holdings Ltd v Sarker [2006] NSWADT 91 was decided, section 76A was in the form set out above at [52]. The proceedings comprised a retail tenancy claim and an unconscionable conduct claim, brought in combination by a lessee, and a retail tenancy claim, brought by way of cross-action by the lessor. There was no evidence suggesting that any of these claims were for an amount exceeding the Tribunal's jurisdictional limit of $300,000 (as it then was). 63At [6 - 9], the Tribunal expressed the opinion that it had power to transfer the lessee's two claims, because one of them was an unconscionable conduct claim, but that it had no power to transfer the 'pure' retail tenancy claim that the lessor had instituted. 64At [15], it observed that 'the strongest argument' raised in favour of transfer was to the following effect:- ... the matter has had a long and difficult (and very expensive) history both before the initial hearing on the facts in the Tribunal, and subsequently in the appeal to the Supreme Court, and then to the Court of Appeal, and then back to the Tribunal, and that that long path establishes that it is a very difficult and complex matter, and that, in turn, brings it within Section 76A (2)(a). 65At [17], [19] and [20], the Tribunal rejected the application for transfer, giving the following reasons:- 17 I am satisfied that in order to fall within Section 76A a party must be able to demonstrate that there is an aspect to the dispute between the parties which the Tribunal has no power to resolve. That aspect could be the fact that there is a likelihood of an order for payment of more than the jurisdictional limit, or the actual possibility of the need for an order which the Tribunal has no statutory power to make (such as the rectification of a lease which is not consented to by the parties). Section 76A is not available in circumstances where nothing has been raised to indicate that the needs of the parties cannot be addressed within the parameters of Sections 72, 72AA and 73. Apart from the alleged complexity of the matter, nothing relevant has been put to me in this regard, and so I hold that the threshold set by Section 76A (2)(a) "may be more effectively and appropriately dealt with in the Supreme Court" has not been satisfied. 18... 19 It follows that I do not have to consider the Section 76A(2)(b) question: - "interests of justice do not require" that the matter remain in the Tribunal. 20 However I do observe that if I am wrong in holding that the Section 76A(2)(a) threshold has not been crossed, then I am still satisfied that the presence of [the respondent's retail tenancy claim] in this Tribunal, which I cannot transfer, means that the Section 76A (2)(b) indicates that the matter should be disposed of in this Tribunal. 66In opposing these arguments, the principal submissions made by Mr Soltan were as follows. 67First, he contended that under section 76A the test set out in paragraph (a) of subsection (2) - that 'the claim... may be more effectively and appropriately dealt with by the Supreme Court' - is to be applied to the unconscionable conduct claim only, not to any associated retail tenancy claim. Mr Cornish's submissions, he said, did not establish that the Applicant's unconscionable conduct claim, viewed in isolation, satisfied this test. Furthermore, to the extent that these submissions relied on the presence of 'novel questions of law', they referred to questions that the Tribunal was well equipped to determine. 68Secondly, he pointed out that the Applicant had prepared its evidence, which included an expert report by a valuer, on the basis that the case would proceed in the Tribunal, where the requirements relating to the admission of evidence differed from, and were generally less technical than, those applying in the Supreme Court. For this reason, the criterion stated in paragraph (b) of section 76A(2) - that 'the interests of justice do not require the matter to be continued to be dealt with by the Tribunal' - was not satisfied. 69Thirdly, Mr Soltan maintained that any argument by Mr Cornish founded on an allegation that the amount claimed by the Applicant exceeded the jurisdictional limit of the Tribunal was flawed, because (a) the evidence did not show that any excess existed and (b) if it did, the Applicant had effectively abandoned it. 70In support of these submissions, Mr Soltan relied on the Tribunal's decision in Panache Salons Pty Ltd v Kent Street Pty Ltd [2009] NSWADT 247. In this case, the Tribunal rejected an application by the applicant for transfer of the proceedings under section 76A. For present purposes, it is sufficient to quote paragraphs [27] and [38] and the opening sentence of [39]:- 27 Section 76A was amended by the provisions in the Retail Leases Amendment Act 2005, which came into effect on 1 January 2006. The amendment inserted the reference to 'or partly for an unconscionable conduct claim and partly a retail tenancy claim' (i.e. a combined claim). The purpose of this amendment was so as to give effect to what had been identified as an anomaly where proceedings involving an unconscionable conduct claim also included a retail leases claim: see Sarker (supra) at [6]. The fact that such combined claims are now expressly included does not, in my opinion, override the primary purpose of the section, namely the transfer of an unconscionable conduct claim where the requirements of that section are met. That is, the amendment was not intended to become a mechanism for the transfer of a retail lease claim (including a claim for compensation for misleading and deceptive conduct contrary to sections 10 and 62D of the RLA) where there is no basis to transfer the unconscionable conduct claim. The legislative intent has remained the same in that the applicant for transfer must demonstrate that the nature of its unconscionable conduct claim is one that may be more effectively and appropriately dealt with by the Supreme Court. 38 As Mr Deutsch pointed out if Panache's application were to be transferred the evidential and other procedural advantages of bringing proceeding before the Tribunal would no longer apply. A consequence will be additional costs and further delays in resolving the retail tenancy dispute between the parties. Mr Deutsch submitted that a transfer could entail the filing and serving fresh evidence as the rules of evidence will apply and if this does occur then the costs incurred to date would be thrown away. No concessions were made that this would not be required. 39 In my opinion, the above are all relevant factors when considering the interests of justice... 71In my judgment, the Respondent's application for transfer must fail, broadly for the reasons advanced by Mr Soltan. 72The criterion stated in paragraph (a) of section 76A(2) is not satisfied, by virtue of the following considerations. The Respondent has not established any ground for a finding that 'the nature of' the unconscionable conduct claim, standing alone, is 'such that it may be more effectively and appropriately dealt with by the Supreme Court'. In so far as any such ground is based on the contention that the Applicant's claim is for an amount exceeding $400,000, that ground is undermined by the Applicant's indication, which I have held to be valid and effective, that any excess is abandoned. The assertions that the questions raised by the Application include 'novel questions of law' and that this constitutes a ground for transfer are unconvincing. The Tribunal, in the role conferred on it by section 75(2), regularly determines such questions arising under the RL Act or under the general law relating to leases. 73In addition, the criterion in paragraph (b) of section 76A(2) is not met. On account of the matters identified in this connection by Mr Soltan, the 'interests of justice' call for the proceedings to remain within the Tribunal.

Costs 74The Applicant's submissions included an application for the costs of the hearing on 26 March 2013 and of an earlier preliminary hearing on 14 March. The principal ground was that the two applications by the Respondent - for an order that the Tribunal lacked jurisdiction and for an order, in the alternative, transferring the proceedings to the Supreme Court - had 'no tenable basis in fact or in law' and therefore fell within the scope of section 88(1A)(c) of the ADT Act. From this, it followed, Mr Soltan submitted, that it would be 'fair' to award costs under section 88(1A). 75Mr Soltan argued also that the Respondent, by filing submissions in advance of a scheduled hearing of its applications on 14 March 2013 and then bringing forward additional submissions at the hearing on that day, had 'unnecessarily disadvantaged' the Applicant by 'causing an adjournment' and 'vexatiously conducting the proceedings' (see section 88(1A)(a)(iv) and (vi)). 76A further provision to which Mr Soltan referred was section 88(1A)(d), which requires the Tribunal to take account of 'the nature and complexity of the proceedings'. He pointed that these were commercial proceedings and argued that they were 'complex'. 77Mr Cornish opposed the argument that the Respondent's applications had no tenable basis in fact or in law. Citing Kelly v Chief Commissioner of State Revenue (No 2) [2010] NSWADT 52, he submitted that the adoption of a different interpretation of relevant provisions of a statute was an insufficient basis for a costs order under section 88(1A). 78As to Mr Soltan's claim that the Applicant should have its costs of the hearing on 14 March 2013, Mr Cornish claimed that on that day the Tribunal had not been in a position to hear the Respondent's applications and that an adjournment would have been necessary even if the Respondent had not brought forward additional submissions. 79In my judgment, the Applicant should have its costs of the hearing before me on 26 March 2013, on the ground that the Respondent's case on both applications was distinctly weak and there was therefore a 'substantial disparity' (this being the phrase used in Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3) between 'the relative strengths of the parties' cases', within the meaning of section 88A(1)(c). Although some dicta in Tribunal decisions favoured the arguments put by the Respondent, the overwhelming weight of authority was to the contrary. 80The evidence before me is insufficient to establish that the reason why the hearing of these applications on 14 March 2013 was postponed was that the Respondent produced additional submissions. The costs of the hearing on that day are therefore not included in my order. 81Mr Soltan's application for costs included a claim that they should include an amount in respect of professional fees payable to him on account of his representation of the Applicant as its 'agent'. He relied on the decision of the Appeal Panel in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 4) [2008] NSWADTAP 14 at [73 - 87]. 82Mr Cornish opposed this claim, on the ground that Mr Soltan, being a director of the Applicant and indeed a material witness on its behalf, was not an 'agent' in the sense that might justify this approach to assessment, but was instead the Applicant's 'alter ego'. 83The evidence relating to this question was not tendered at the hearing before me and it was not the subject of detailed argument. The question must therefore be held over for determination at a future stage of the proceedings. 84I will add only the observation that the 'agent' in respect of whose representation costs were awarded in the B & L decision was the employee of an accountancy firm which contracted at arms' length with the successful party to provide legal services. The relationship between the agent and the party was therefore very different to that obtaining between Mr Soltan and the Applicant. For this reason, it cannot be assumed that by virtue of the decision in B & L any costs order made against the Respondent in these proceedings should include an amount in respect of fees paid or payable to Mr Soltan by the Applicant.

The orders to be made 85My orders are as follows:- 1. The Respondent's application for an order dismissing these proceedings on the ground of lack of jurisdiction is dismissed. 2. The Respondent's application for an order transferring these proceedings to the Supreme Court is dismissed. 3. The Respondent is to pay the Applicant's costs of and incidental to the hearing on 26 March 2013. 4. The question whether the costs ordered to be paid under Order 3 should include any amount in respect of fees paid or payable by the Applicant to Mr Haney Soltan for services rendered as its agent in these proceedings is to be determined at a future time. 5. The proceedings are listed for further directions on Thursday 6 June 2013 at 10 a.m.

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: 29 May 2013

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