Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706

Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706

Section 68 of the Retail Leases Act 1994 does not make mediation a condition precedent to the commencement of proceedings; rather, the court may not proceed to hear and determine a retail tenancy dispute unless and until satisfied either that mediation has failed (by certificate) or that mediation would be unlikely to resolve the dispute. Thus, proceedings commenced without mediation are not an abuse of process, nor does the absence of mediation deprive the court of jurisdiction. The court may stay proceedings pending mediation but is not compelled to strike them out.

Jurisdiction
Australia
Judgment Date
08 July 2011
Procedural Posture
Appeal / Leave to Appeal and Substantive Appeal From Local Court Decision
Outcome
Leave to appeal granted; appeal allowed; judgment below set aside; matter remitted for rehearing; costs ordered for applicant.
Legal Topics
['statutory Construction' 'condition Precedent to Proceedings' 'jurisdiction of Courts' 'mediation Requirements']
['retail Leases' 'civil Procedure'] ['statutory Construction' 'condition Precedent to Proceedings' 'jurisdiction of Courts' 'mediation Requirements']

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Procedural Posture

Appeal / Leave to Appeal and Substantive Appeal From Local Court Decision

Legal Issues

  1. 1 ['Whether mediation under s 68 of the Retail Leases Act 1994 is a condition precedent to commencing court proceedings' 'Whether Local Court proceedings could be commenced before mediation/certification under s 68' 'Proper construction of s 68 of the Retail Leases Act 1994']

Ratio Decidendi

Section 68 of the Retail Leases Act 1994 does not make mediation a condition precedent to the commencement of proceedings; rather, the court may not proceed to hear and determine a retail tenancy dispute unless and until satisfied either that mediation has failed (by certificate) or that mediation would be unlikely to resolve the dispute. Thus, proceedings commenced without mediation are not an abuse of process, nor does the absence of mediation deprive the court of jurisdiction. The court may stay proceedings pending mediation but is not compelled to strike them out.

Court Disposition

Leave to appeal granted; appeal allowed; judgment below set aside; matter remitted for rehearing; costs ordered for applicant.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The judgment of Bradd LCM delivered on 3 September 2010 be set aside.' 'The matter is remitted back to Bradd LCM to be heard and determined according to law.' "The first respondent (Kim-Po Sor) and the second respondent (Vattanak Im) are to pay the applicant's (Fordham...