Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9

Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9

The Respondent's strike-out applications failed because the Applicant's late filing was adequately explained and caused no serious prejudice, the alleged further lease was capable of founding jurisdiction if proved, and Section 65(2) of the Retail Leases Act 1994 allowed the Registrar to intervene in Tribunal proceedings. However, the Registrar's own application for declarations failed because the Registrar's statutory intervention rights did not confer a general power to act as guardian of the Act, take sides, or seek declarations about the auditor's certificate beyond the functions conferred by the Act. The Applicant was entitled to inspect accounting records so the true issues about...

Jurisdiction
Australia
Judgment Date
12 January 2001
Procedural Posture
Retail Tenancy Dispute / Interlocutory Application by Respondent to Strike Out Amended Claim, Strike Out Registrar's Appearance and Strike Out Applicant's Claim Generally
Outcome
Respondent's strike-out applications dismissed; Registrar's application for declarations dismissed; directions made for production and review of accounting records; no order for costs against the Registrar.
Legal Topics
['tribunal Jurisdiction' 'retail Tenancy Disputes' 'registrar Intervention' 'strike Out Application' 'audit Certificates' 'outgoings' 'alternative Dispute Resolution' 'costs']
['retail Leases' 'administrative Law' 'civil Procedure'] ['tribunal Jurisdiction' 'retail Tenancy Disputes' 'registrar Intervention' 'strike Out Application' 'audit Certificates' 'outgoings' 'alternative Dispute Resolution' 'costs']

Case Brief

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Procedural Posture

Retail Tenancy Dispute / Interlocutory Application by Respondent to Strike Out Amended Claim, Strike Out Registrar's Appearance and Strike Out Applicant's Claim Generally

Legal Issues

  1. 1 ["Whether the Applicant's amended claim should be struck out because it was filed later than directed." 'Whether the Tribunal had jurisdiction where the Applicant occupied the premises after 30 September 1997 as a monthly tenant holding over, but alleged an accepted offer of a further lease.' 'Whether the Registrar of Retail Tenancy Disputes had a right to intervene in proceedings in the Tribunal under Section 65(2) of the Retail Leases Act 1994.' "What powers the Registrar had after intervening, including whether the Registrar could seek declarations about compliance of an auditor's certificate with the Act." "Whether the Applicant's remaining claim should be dismissed on jurisdictional or limitation grounds." 'Whether costs should be ordered between the Registrar and the Respondent.']

Ratio Decidendi

The Respondent's strike-out applications failed because the Applicant's late filing was adequately explained and caused no serious prejudice, the alleged further lease was capable of founding jurisdiction if proved, and Section 65(2) of the Retail Leases Act 1994 allowed the Registrar to intervene in Tribunal proceedings. However, the Registrar's own application for declarations failed because the Registrar's statutory intervention rights did not confer a general power to act as guardian of the Act, take sides, or seek declarations about the auditor's certificate beyond the functions conferred by the Act. The Applicant was entitled to inspect accounting records so the true issues about...

Court Disposition

Respondent's strike-out applications dismissed; Registrar's application for declarations dismissed; directions made for production and review of accounting records; no order for costs against the Registrar.

Orders

  • ["Respondent's application to strike-out Applicant's amended claim dismissed." "Respondent's application to strike-out appearance of Registrar of Retail Tenancy Dispute dismissed." 'Application by Registrar of Retail Tenancy Disputes for Declarations dismissed.' 'Respondent ordered to make accounting records...