KETCH Nominees Pty Ltd v Spooner

[2000] WADC 258

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KETCH NOMINEES PTY LTD -v- SPOONER & ANOR [2000] WADC 258

CORAM:   REGISTRAR KINGSLEY

HEARD:   20 SEPTEMBER 2000

DELIVERED          :   17 OCTOBER 2000

FILE NO/S:   CIV 46 of 2000

BETWEEN:   KETCH NOMINEES PTY LTD

Plaintiff

AND

GREGORY ALAN SPOONER
First Defendant

LYNDA MARY SPOONER
Second Defendant

Catchwords:

Practice - Stay of proceedings - Section 27(1) Commercial Tenancy (Retail Shops) Act 1985

Legislation:

Commercial Tenancy (Retail Shops) Act 1985

Result:

Stay refused

Representation:

Counsel:

Plaintiff:     Mr S Hicks

First Defendant             :     Ms Y Henderson

Second Defendant         :     Ms Y Henderson

Solicitors:

Plaintiff:     Richard Huston & Associates

First Defendant             :     Gibson & Gibson

Second Defendant         :     Gibson & Gibson

Case(s) referred to in judgment(s):

About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1996) 17 WAR 309

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  Proceedings in this matter were instituted in this Court by writ filed 11 January 2000 claiming:

   (a)Administration costs;

   (b)Interest on rent;

   (c)Costs of repairs and maintenance upon the defendant abandoning the premises;

   (d)Costs of replacing fixtures and fittings;

   (e)Damages being rent and costs incurred in finding a new tenant.

2. The defendant had made a reference dated 17 October 1997 in the prescribed form to the Commercial Registrar of the Commercial Tribunal.  At the time of filing the writ the Commercial Registrar had not come to a decision.  The preliminary issue before me is whether the decision in About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1996) 17 WAR 309 renders these proceedings a nullity.

3. Section 27(1) of the Commercial Tenancy (Retail Shops) Act 1985 provides that where, in the Act there is provision for reference to the Commercial Registrar, and the same question may be determined by a Court, then the applicant must elect to commence in one of the jurisdictions.  By s 19(1) of the Act a question arising under a retail shop lease is referred to the Commercial Registrar by the applicant completing the prescribed form.

4. In this matter the plaintiff's counsel argues that, save for administration costs, none of the questions referred to the Registrar in the reference dated 17 October 1997 are reflected in the writ.  This is because the cause of action forming the basis of the statement of claim arises from the abandonment of the premises.

5. Justice Parker in his judgment in About Holdings (supra) appears to confine the operation of s 27(1) of the Act to the situation where the same question is sought to be argued in the Court and before the Commercial Tribunal.  At p 312 at lines "B", "E" and "F", Justice Parker specifically refers to the "same question" being referred to the Registrar and before the Court.  Accordingly, I am drawn to the conclusion that the prohibition on commencing proceedings before the Commercial Tribunal and before a Court only applies where the same question is brought to be determined.

6. The defendant's counsel argues that the same question is being sought to be determined both in this Court and before the Commercial Tribunal.  Defendant's counsel took me to the reference before the Tribunal and to the statement of claim to demonstrate that some of the claims are the same.  The plaintiff's counsel argues that no issues are the same - except for the administration costs.

7. In my opinion the reference before the Tribunal arises out of the lease.  It is a matter, or question, dealing with the lease.  The writ deals with matters arising from determination of the lease.  Thus, whilst on the face of it there is cross-over of claims, the claims do not give rise to the same question.

8. Accordingly, I am of the opinion that s 7(1) of the Commercial Tenancy (Retail Shops) Act 1985 does not prohibit the institution of these proceedings.  I will hear counsel as to the further orders necessary.