Grand Development Pty Ltd v Simdex Surry Hills Pty Ltd [2009] NSWADT 26

Grand Development Pty Ltd v Simdex Surry Hills Pty Ltd [2009] NSWADT 26

The Tribunal had jurisdiction because the premises were used as a retail shop, namely a furniture shop, and the lettable area was no more than 987 square metres. The business sold furniture and ancillary items directly to the public, so GLAR rather than GLA was the appropriate industry measurement approach. Adjusting the measurements by excluding areas such as the car parking area, fire stairs, stair void and under-height stair area, while including toilets and kitchen as adjuncts to the retail business, meant the lettable area remained below the 1,000 square metre threshold and the Retail Leases Act 1994 s 5 exclusion did not apply.

Jurisdiction
Australia
Judgment Date
06 February 2009
Procedural Posture
Application for Declaration as to Tribunal Jurisdiction in a Retail Lease Dispute / Decision After Hearing
Outcome
Declaration that the Tribunal has jurisdiction because the premises were used as a retail shop with a lettable area of no more than 987 square metres, so the Retail Leases Act 1994 s 5 exclusion has no application.
Legal Topics
['lettable Area' 'retail Shop' 'furniture Shop' 'property Council of Australia Measurement Formulae' 'retail Leases Act 1994 S 5 Exclusion']
['retail Leases' 'tribunal Jurisdiction'] ['lettable Area' 'retail Shop' 'furniture Shop' 'property Council of Australia Measurement Formulae' 'retail Leases Act 1994 S 5 Exclusion']

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Procedural Posture

Application for Declaration as to Tribunal Jurisdiction in a Retail Lease Dispute / Decision After Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to hear the dispute or whether the Retail Leases Act 1994 did not apply because the premises had a lettable area of 1,000 square metres or more.' 'Whether the premises were used as a retail shop, specifically a furniture shop, rather than merely as a showroom.' 'Which measurement approach, GLA or GLAR, was appropriate for assessing lettable area and what areas should be excluded or included.']

Ratio Decidendi

The Tribunal had jurisdiction because the premises were used as a retail shop, namely a furniture shop, and the lettable area was no more than 987 square metres. The business sold furniture and ancillary items directly to the public, so GLAR rather than GLA was the appropriate industry measurement approach. Adjusting the measurements by excluding areas such as the car parking area, fire stairs, stair void and under-height stair area, while including toilets and kitchen as adjuncts to the retail business, meant the lettable area remained below the 1,000 square metre threshold and the Retail Leases Act 1994 s 5 exclusion did not apply.

Court Disposition

Declaration that the Tribunal has jurisdiction because the premises were used as a retail shop with a lettable area of no more than 987 square metres, so the Retail Leases Act 1994 s 5 exclusion has no application.

Orders

  • ['The Tribunal has jurisdiction because the lettable area of the premises is less than 1,000 sqm, and the business conducted on the premises is that of "furniture shop"' 'Costs reserved' 'Listed for directions 19 February 2009 at 10:30am.']