MEDIUM NEUTRAL CITATION: [2002] VCAT 1041

1. Pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998 orders 1 and 2 of the orders sought by the applicant and the supporting grounds relating to them struck out.

2. Application pursuant to s.75 relating to orders 3 and 4 of the orders sought and the supporting grounds fails and is dismissed.

4. Matter otherwise adjourned for mention on 8 November 2002 at 9.30 am.

For the Applicant: Mr G Goldsmith of Goldsmiths Barristers and Solicitors

For the First Respondent: Mr M Clarke instructed by Dennis Raftis & Associates

1. This matter comes before the Tribunal by reason of an application by the first respondent, Jim Nicolaou, pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998. Such application, is constituted by way of a letter of 6 September 2002 together with a supporting affidavit sworn by Mr Nicolaou to which are exhibited various documents. Essentially that respondent seeks the dismissal of the applicant's proceedings. Reference is also made to s.78 of the Act, although argument centred almost exclusively upon s.75.

2. The second respondent, Mr Peter Ahmed, does not join in this "strike-out" application, although he extended to the Tribunal the courtesy of attending in case his presence was required.

3. The application concerning which the "strike-out" application is made is one relating to premises at 35-41 Hoddle Street, Richmond. The applicant company has been the tenant of such premises pursuant to a lease dated 19 April 2002. The first respondent is the landlord of such premises. The applicant has issued proceedings seeking various heads of relief in relation to the property and the lease. Firstly, it seeks a declaration that the notice of re-entry is invalid. Secondly, it seeks an interim injunction that the landlord not be allowed to re-enter the premises until the final determination of the proceeding. Thirdly, it seeks damages. Additionally, it seeks costs. In its application, which is dated 21 August 2002, it also sets out the grounds upon which it relies. The grounds are not set out in the same order as the heads of relief sought. In relation to the damages sought, it alleges that it wishes to undertake structural works upon the site, that the landlord has neglected and/or refused permission in relation to those works, and as a result the applicant is suffering loss and damage. In relation to the declaration and injunction sought, it is alleged that the landlord on 20 August 2002 served on the applicant a notice of re-entry and that such notice is invalid as it is based upon a premise that the tenant is obliged to pay rental. It further alleges that there is no obligation to pay such rental as no disclosure statement was served by the first respondent pursuant to the Retail Tenancies Reform Act 1998. Such allegation is clearly referring to s.8 of that Act.

4. The matter is further complicated by the fact that an originating motion was issued out of the Supreme Court of Victoria (Matter No. 6193 of 2002) and was heard by the Honourable Justice Byrne on 22 July 2002, he giving judgment on 9 August 2002. The issue litigated before Byrne J basically was whether or not the subject premises were retail premises within the meaning of the Retail Tenancies Reform Act, and, as a result, whether or not a retail tenancies lease existed. On 9 August 2002, Byrne J ruled that the premises were not retail premises within the meaning of the Retail Tenancies Reform Act 1998 and the lease of them was not a retail tenancies lease. A notice of appeal in relation to this decision has been filed and served, and a summons seeking the speedy hearing of that appeal has similarly been lodged.

5. It is against this background that the "strike-out" application came on before me. Through their legal representatives, both sides advanced detailed and helpful arguments, each presented comprehensive written submissions, and I was referred to and given copies of many judgments and rulings relating to the submissions.

6. The submissions of Mr Clark on behalf of the first respondent, he being the applicant in the "strike-out" application, could be summarised as follows. The principal application in this matter is one pursuant to the Retail Tenancies Reform Act 1998. Byrne J has ruled that the subject premises are not retail premises within the meaning of the Act and the lease is not a retail tenancies lease. That being so, the Tribunal no longer has jurisdiction to deal with the matter and the present proceeding should be summarily dismissed or struck out - see Maltall Pty Ltd v Bevendale Pty Ltd (1998) 14 VAR 368. Further, there is, to quote him, no escaping a ruling on the question of jurisdiction, which must first be determined. Arguments concerning jurisdiction are not to be viewed in the same way as the application itself when s.75 is being considered. In other words, in determining the question of jurisdiction, I am not to consider whether the arguments of the applicant are obviously hopeless, unsustainable in fact or in law, bound to fail, or will contribute to or represent an abuse of process. I must first determine jurisdiction and then move on to those considerations. If there is no jurisdiction, I should adopt the approach of Deputy President Macnamara in Maltall. Further, the fact that there is on foot an appeal from the decision of Byrne J should not act as a stay in relation to these proceedings, and, in the absence of any order to the contrary, no intermediate act or step would be invalidated - see Order 64.25 of the Supreme Court (General Civil Procedure) Rules.

7. Mr Goldsmith, on behalf of the applicant of the principal proceedings and the respondent to the "strike-out" application, argued as follows. Firstly, attention should be paid to the fact that the decision of Byrne J is the subject of a notice of appeal. Secondly, this Tribunal is not a Court of pleading, and reliance can be placed upon all relevant legislation. In any event, particularly in relation to a "strike-out" application, regard should be had to whether or not a proper or legitimate amendment of pleading could save the application - see the commentary to Order 23.01 of the Supreme Court Rules. In the present case, his client also relied upon the Fair Trading Act 1999. Regardless of how the proceeding had arrived at the Tribunal, which list the matter was in, or what grounds were set out in the original application, the Fair Trading Act could also be relied upon, and pursuant to that Act the Tribunal has jurisdiction to hear and determine disputes between a landlord and a tenant. This jurisdiction has been spelt out in a number of decisions such as Glen Bakker v Capitol Arcade Pty Ltd (2000) VCAT 653, Davinski Nominees Pty Ltd v The Better Bookshop (2000) VCAT 1452 and Humphries and Cooke Ltd v Essendon Airport Limited (2001) VCAT 2439. In particular, I was referred to the statement of Deputy President Macnamara in Humphries to the effect that:

"It appears that Sections 107 and 108 of the Fair Trading Act 1999 bestow a general landlord and tenant jurisdiction on this Tribunal. They give the Tribunal power to determine fair trading disputes which are defined as disputes between the suppliers and purchasers of goods and services. Services are defined in Section 3 of the Act to include interests in real or personal property, and supply is defined to include grant. It follows in my view that whether or not the Retail Tenancies Reform Act applies to these premises the Tribunal has jurisdiction in a general sense to deal with a dispute between the landlord and tenant in the present circumstances."

8. Further, Mr Goldsmith argued, had the Fair Trading Act been in existence, or had it at the time been given the retrospective operation referred to by Beach J in Vamot Pty Ltd v Tempacoe Pty Ltd (2000) VSC 251, the decisions in Maltall and in Lylecash Pty Ltd v Mayfly Pty Ltd (2000) V and CONV REP 58-242 may well have been different. There is no doubt but that this is a dispute between a landlord and a tenant. The affidavit of Mr Nicolaou establishes that, apart from the general documentation. Pursuant to the Fair Trading Act and in the light of the decisions referred to above, the Tribunal has jurisdiction to deal with the matter regardless of the operation of the Retail Tenancies Reform Act 1998. The Tribunal has jurisdiction. The "strike-out" application is based on the absence of jurisdiction. There being jurisdiction, it must fail. Further, the general powers of the Tribunal contained in ss.123 and 124 of the VCAT Act give it the power to grant injunctions and make declarations even if such are not specifically referred to in s.108 of the Fair Trading Act.

9. In my opinion, the argument advanced by Mr Goldsmith in relation to the existence of jurisdiction is correct. I agree with the summation of the law given by Deputy President Macnamara in the authorities to which I was referred. Whether or not it was so intended, the breadth of the jurisdiction conferred by the Fair Trading Act 1999 seems to me to be such that it encompasses a dispute between landlord and tenant. I also agree with the basic proposition that, once it is established that the matter is a fair trading dispute within the meaning of s.108(1) of that Act, the Tribunal may hear the dispute, and issues concerning the legislation upon which reliance is placed can be clarified by amendment if required. I agree with the fundamental proposition that it matters not how the dispute came to be before the Tribunal. Once it is before the Tribunal, and is a fair trading dispute, the Tribunal can then hear it. This is a fair trading dispute. The Tribunal can hear it. However, it seems to me that that is not the end of the matter.

10. What must now be considered is the nature and content of the fair trading dispute which is before the Tribunal. It is to be remembered that the original applicant is seeking, in essence, two categories of relief which have different bases. It seems to me that the applicant is claiming damages in respect of the neglect or refusal of the first respondent to permit the structural works upon the site. Secondly, it is seeking a declaration and injunction which relate to a re-entry, the obligation to pay rental, and the alleged failure to provide a disclosure statement pursuant to the Retail Tenancies Reform Act.

11. I shall now deal with that second category of relief sought. As set out in the grounds of the application, the key to the basis for the declaration that the notice of re-entry is invalid and for the interim injunction that the landlord not be allowed to re-enter the premises is found in the allegation that no disclosure notice was given pursuant to the Retail Tenancies Reform Act and accordingly there was no obligation to pay rent. In other words, the invalid re-entry relates to the non-payment of rent, which in turn relates to the requirement for a notice of disclosure which in turn is contingent upon and takes one to the operation of the Retail Tenancies Reform Act 1998. These aspects of this very dispute, which, as I have ruled, this Tribunal has jurisdiction to determine, centres on and is intrinsically and inextricably and specifically linked to the operation of s.8 of the Retail Tenancies Reform Act. Byrne J has ruled in relation to the premises, the lease and, accordingly, the operation of the Act. He has ruled that the premises are not retail premises within the meaning of the Act, and the lease is not a retail tenancies lease. Therefore, and inevitably, the Retail Tenancies Reform Act does not operate. However, it is the operation of that very Act which provides the foundation for the prerogative relief sought by the applicant.

12. In other words, subject to any appeal, the Supreme Court has already ruled upon these aspects of the dispute which is before the Tribunal. Subject to such appeal - and I accept the argument of Mr Clarke on behalf of the first respondent that, in the absence of any order, no stay operates and no intermediate act or step is invalid - the Supreme Court has ruled in relation to this very dispute, and has ruled against the applicant. In the absence of an order overturning the decision of Byrne J, the applicant cannot succeed in its attempt at seeking this particular relief in the manner in which it has. There is a binding decision of the Supreme Court against it. The difficulty which it faces seems to me to be one more of res judicata or issue estoppel than one of jurisdiction. Further, an attempt to re-litigate the same issues in an endeavour to obtain the relief sought could well constitute an abuse of process.

13. However, the other category of relief sought by the applicant seems to me to remain untouched by the decision of Byrne J. The issue in dispute before him centred upon whether the premises in question are retail premises within the meaning of the Retail Tenancies Reform Act 1998. He was in no way required to, nor did he, make any ruling concerning the structural works, permission, or any damages relating to them.

14. That being the case, the difficulties confronting the applicant as a result of the decision in relation to the nature of the premises do not exist in relation to the construction works and any alleged damages relating to the failure to build them. I have already ruled that jurisdiction exists in the Tribunal to determine a dispute between landlord and tenant pursuant to the provisions of the Fair Trading Act 1999. The affidavit of Mr Nicolaou and the exhibits thereto establish to my satisfaction that a dispute exists concerning consent to the erection of certain structures. I appreciate that the chief focus of attention in the application before me has been on the other category of relief concerning re-entry, but there is little before me to support an application pursuant to s.75 of the VCAT Act to strike out those portions of the application dealing with the structural works and any damages flowing from the absence of permission relating to them.

15. Section 75 permits the summary dismissal or striking out of all, or any part, of a proceeding in the appropriate circumstances. I have stated that, in my opinion and given the decision of Byrne J, the applicant cannot succeed in relation to orders 1 and 2 and the grounds set out in support of such proposed orders. Accordingly, they will be summarily dismissed or struck-out, depending upon what is ultimately sought. However, I am far from satisfied that order 3 and the grounds supporting it, or for that matter, order 4 relating to costs, should be summarily dismissed or struck-out, and the application fails in that regard.