Lauven Pty Ltd & Anor v Venus Adult Shops Pty Ltd & Ors [2006] NSWADT 359

Lauven Pty Ltd & Anor v Venus Adult Shops Pty Ltd & Ors [2006] NSWADT 359

The stated permitted use as an 'Adult Shop' was not sufficiently clear to identify the agreed business, so it was appropriate to consider the agreed actual use. The sale of adult books, adult lingerie and DVD/videos fell within the ordinary meanings of Schedule 1 businesses of 'bookshops', 'lingerie shops' and 'video and pre-recorded music libraries' as at 1 February 2004. Having regard to the sales and volume figures, especially DVD/video sales and the combined Schedule 1 uses, those uses were predominant. The premises were therefore a 'retail shop' and the Tribunal had jurisdiction.

Jurisdiction
Australia
Judgment Date
18 December 2006
Procedural Posture
Retail Tenancy Application for Payment of Arrears of Rent, Outgoings and Interest / Preliminary Jurisdictional Matter
Outcome
The Tribunal found that it had jurisdiction to hear and determine the applicants' application.
Legal Topics
['tribunal Jurisdiction' 'retail Shop Lease' 'retail Tenancy Claim' 'predominant Use of Premises' 'schedule 1 Retail Shop Businesses']
['retail Leases' 'civil Procedure'] ['tribunal Jurisdiction' 'retail Shop Lease' 'retail Tenancy Claim' 'predominant Use of Premises' 'schedule 1 Retail Shop Businesses']

Case Brief

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Procedural Posture

Retail Tenancy Application for Payment of Arrears of Rent, Outgoings and Interest / Preliminary Jurisdictional Matter

Legal Issues

  1. 1 ["Whether the premises were a 'retail shop' within s.3 of the Retail Leases Act 1994 as in force when the sublease was entered into on 1 February 2004." 'Whether the permitted and actual use as an Adult Shop came wholly or predominantly within one or more businesses listed in Schedule 1 of the Retail Leases Act 1994 at the relevant time.' 'Whether the Tribunal had jurisdiction to hear and determine the application.']

Ratio Decidendi

The stated permitted use as an 'Adult Shop' was not sufficiently clear to identify the agreed business, so it was appropriate to consider the agreed actual use. The sale of adult books, adult lingerie and DVD/videos fell within the ordinary meanings of Schedule 1 businesses of 'bookshops', 'lingerie shops' and 'video and pre-recorded music libraries' as at 1 February 2004. Having regard to the sales and volume figures, especially DVD/video sales and the combined Schedule 1 uses, those uses were predominant. The premises were therefore a 'retail shop' and the Tribunal had jurisdiction.

Court Disposition

The Tribunal found that it had jurisdiction to hear and determine the applicants' application.

Orders

  • ["The Tribunal has jurisdiction to hear and determine the applicant's application." 'The matter is to be set down for further directions on 1 February 2007 at 10:30 am.']