Tu v CH Real Estate Pty Ltd t/as Raine & Horne Campbelltown [2015] NSWSC 1728

Tu v CH Real Estate Pty Ltd t/as Raine & Horne Campbelltown [2015] NSWSC 1728

The proceedings should be transferred from the District Court to the Supreme Court because the parties accepted that the District Court lacked jurisdiction to grant aspects of the relief sought or proposed, including possession, declarations and injunctions. The Tribunal Proceedings should not be transferred back to the Tribunal because the principal dispute was whether any retail shop lease existed; the Tribunal did not have jurisdiction in the first instance to determine that disputed existence, and s 75 was not engaged because the Court could not be satisfied that the proceedings involved a retail tenancy dispute. Even if s 75 could apply, the interests of justice required the matter...

Jurisdiction
Australia
Judgment Date
23 November 2015
Procedural Posture
Summons for Transfer of District Court Proceedings to the Supreme Court and Cross Summons for Transfer of Proceedings Back to the NSW Civil and Administrative Tribunal / Procedural Ruling on Summons and Cross Summons
Outcome
Proceedings transferred to the Supreme Court; transferred proceedings directed to be heard together; Cross-Summons dismissed.
Legal Topics
['retail Leases' 'nsw Civil and Administrative Tribunal' 'transfer of Proceedings' 'district Court Jurisdiction' 'supreme Court Jurisdiction' 'retail Tenancy Dispute' 'existence of Lease']
['leases' 'civil Procedure' 'jurisdiction'] ['retail Leases' 'nsw Civil and Administrative Tribunal' 'transfer of Proceedings' 'district Court Jurisdiction' 'supreme Court Jurisdiction' 'retail Tenancy Dispute' 'existence of Lease']

Case Brief

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Procedural Posture

Summons for Transfer of District Court Proceedings to the Supreme Court and Cross Summons for Transfer of Proceedings Back to the NSW Civil and Administrative Tribunal / Procedural Ruling on Summons and Cross Summons

Legal Issues

  1. 1 ['Whether proceedings in the District Court concerning the alleged retail lease should be transferred to the Supreme Court under s 140(2) of the Civil Procedure Act 2005 (NSW).' 'Whether the Tribunal had jurisdiction in the first instance to determine a dispute where the existence of a retail shop lease was itself disputed.' 'Whether this Court should transfer the proceedings originally commenced in the Tribunal back to the Tribunal.' 'Whether s 75 or s 76 of the Retail Leases Act 1994 (NSW) deprived the Supreme Court of jurisdiction or required transfer to the Tribunal.' 'Whether the prior order transferring the Tribunal Proceedings to the District Court was void or ineffective.']

Ratio Decidendi

The proceedings should be transferred from the District Court to the Supreme Court because the parties accepted that the District Court lacked jurisdiction to grant aspects of the relief sought or proposed, including possession, declarations and injunctions. The Tribunal Proceedings should not be transferred back to the Tribunal because the principal dispute was whether any retail shop lease existed; the Tribunal did not have jurisdiction in the first instance to determine that disputed existence, and s 75 was not engaged because the Court could not be satisfied that the proceedings involved a retail tenancy dispute. Even if s 75 could apply, the interests of justice required the matter...

Court Disposition

Proceedings transferred to the Supreme Court; transferred proceedings directed to be heard together; Cross-Summons dismissed.

Orders

  • ['An order under s 140(2) of the Civil Procedure Act 2005 (NSW) transferring to this Court proceedings currently before the District Court of NSW being: (a) Case number 2014/164670 including proceedings on the First Cross-Claim in those District Court proceedings; and (b) Proceedings originally commenced in the NSW...