Cai v Sydney Markets Ltd - [2011] NSWADT 107

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Cai & ors v Sydney Markets Ltd [2011] NSWADT 107
Hearing dates: 28 and 31 March 2011
Decision date: 17 May 2011
Before: M Chesterman, Deputy President
Decision:
1. Declare that neither of the Respondent's
(a) notice of intended termination given to the Applicants by letter dated 5 August 2010,
(b) notice of suspension given to the Applicants by letter dated 16 November 2010,
was permitted by or in accordance with the Occupancy Agreement entered into between the Applicants and the Respondent and each is void and of no effect for the purposes of the Occupancy Agreement.
2. Declare that the Respondent's exclusion of the Applicants from the Shops occupied by them, commencing on 17 November 2010, was a breach of the Occupancy Agreement.
3. Within 21 days, the Respondent is to file and serve such submissions as it may wish to make on either or both of the following matters:-
(a) Whether any declaration may usefully and properly be made, and if so in what terms, defining the types of 'accessories' for 'music players' that constitute 'Authorised Goods' which the Applicants are entitled, under their agreement with the Respondent, to sell pursuant to the Occupancy Agreement.
(b) The costs of these proceedings.
4. Within a further 21 days, the Applicants are to file and serve such submissions as they may wish to make on either or both of the matters outlined in Order 3.
5. The parties have liberty to apply for variation or clarification of the directions given in Orders 3 and 4.
6. The Tribunal's decision on any submissions filed pursuant to these directions will be made 'on the papers', under section 76 of the Administrative Decisions Tribunal Act 1997, unless it considers that a further hearing is required.
7. Save as aforesaid, the Application is dismissed.
8. The interim orders made by the Tribunal on 9 December 2010 are discharged.

Catchwords: Retail shop lease - interpretation of occupancy agreement - variation of agreement - estoppel
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Cases Cited: Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191
Evans v Stevens (1791) 4 TR 224; 100 ER 986
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Lend Lease Real Estate Investments Pty Ltd v GPT RE Ltd [2006] NSWCA 207
Letang v Cooper [1965] 1 QB 232
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Sydney Markets Ltd v Wilson [2010] NSWADTAP 45
Thompson v Palmer (1933) 49 CLR 507
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Wilson v Sydney Markets Ltd [2009] NSWADT 256
Texts Cited: Lewison, The Interpretation of Contracts (Sweet & Maxwell, 2007)
Category: Principal judgment
Parties: Hengfeng Cai (First Applicant - file 105191)
Jing Gao (Second Applicant - file 105191)
Hui…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWADT 107
Decision Date: 17 May 2011

CaseChat Overview and Summary

The applicants, Cai, sought a declaration from the Australian Capital Territory Civil and Administrative Tribunal regarding the validity of notices issued by Sydney Markets Ltd. The dispute centred around the interpretation of an occupancy agreement concerning a retail shop lease, and the legality of notices issued by Sydney Markets Ltd terminating and suspending the applicants' occupancy. The applicants also sought to challenge the exclusion from their premises. The tribunal was required to determine whether the notices issued by Sydney Markets Ltd were in accordance with the terms of the occupancy agreement, and whether the exclusion of the applicants constituted a breach of that agreement. The tribunal held that neither the notice of intended termination nor the notice of suspension were permitted by or in accordance with the occupancy agreement, and both were void and of no effect. Furthermore, the exclusion of the applicants from their shops was deemed to be a breach of the occupancy agreement. The tribunal directed the parties to file submissions on specific matters, including the types of accessories for music players that the applicants were entitled to sell under the agreement, and the costs of the proceedings. The tribunal also granted liberty to the parties to apply for variation or clarification of the directions given. The tribunal's decision on any submissions filed would be made on the papers, unless a further hearing was required. The application was dismissed in all other respects, and the interim orders made by the tribunal on 9 December 2010 were discharged.

Orders

Orders of the court

1. Declare that neither of the Respondent's

(a) notice of intended termination given to the Applicants by letter dated 5 August 2010,

(b) notice of suspension given to the Applicants by letter dated 16 November 2010,

was permitted by or in accordance with the Occupancy Agreement entered into between the Applicants and the Respondent and each is void and of no effect for the purposes of the Occupancy Agreement.

2. Declare that the Respondent's exclusion of the Applicants from the Shops occupied by them, commencing on 17 November 2010, was a breach of the Occupancy Agreement.

3. Within 21 days, the Respondent is to file and serve such submissions as it may wish to make on either or both of the following matters:-

(a) Whether any declaration may usefully and properly be made, and if so in what terms, defining the types of 'accessories' for 'music players' that constitute 'Authorised Goods' which the Applicants are entitled, under their agreement with the Respondent, to sell pursuant to the Occupancy Agreement.

(b) The costs of these proceedings.

4. Within a further 21 days, the Applicants are to file and serve such submissions as they may wish to make on either or both of the matters outlined in Order 3.

5. The parties have liberty to apply for variation or clarification of the directions given in Orders 3 and 4.

6. The Tribunal's decision on any submissions filed pursuant to these directions will be made 'on the papers', under section 76 of the Administrative Decisions Tribunal Act 1997, unless it considers that a further hearing is required.

7. Save as aforesaid, the Application is dismissed.

8. The interim orders made by the Tribunal on 9 December 2010 are discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cai & ors v Sydney Markets Ltd [2011] NSWADT 107
Hearing dates:	28 and 31 March 2011
Decision date:	17 May 2011
Before:	M Chesterman, Deputy President
Decision:	1. Declare that neither of the Respondent's (a) notice of intended termination given to the Applicants by letter dated 5 August 2010, (b) notice of suspension given to the Applicants by letter dated 16 November 2010, was permitted by or in accordance with the Occupancy Agreement entered into between the Applicants and the Respondent and each is void and of no effect for the purposes of the Occupancy Agreement. 2. Declare that the Respondent's exclusion of the Applicants from the Shops occupied by them, commencing on 17 November 2010, was a breach of the Occupancy Agreement. 3. Within 21 days, the Respondent is to file and serve such submissions as it may wish to make on either or both of the following matters:- (a) Whether any declaration may usefully and properly be made, and if so in what terms, defining the types of 'accessories' for 'music players' that constitute 'Authorised Goods' which the Applicants are entitled, under their agreement with the Respondent, to sell pursuant to the Occupancy Agreement. (b) The costs of these proceedings. 4. Within a further 21 days, the Applicants are to file and serve such submissions as they may wish to make on either or both of the matters outlined in Order 3. 5. The parties have liberty to apply for variation or clarification of the directions given in Orders 3 and 4. 6. The Tribunal's decision on any submissions filed pursuant to these directions will be made 'on the papers', under section 76 of the Administrative Decisions Tribunal Act 1997, unless it considers that a further hearing is required. 7. Save as aforesaid, the Application is dismissed. 8. The interim orders made by the Tribunal on 9 December 2010 are discharged.
Catchwords:	Retail shop lease - interpretation of occupancy agreement - variation of agreement - estoppel
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191 Evans v Stevens (1791) 4 TR 224; 100 ER 986 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Lend Lease Real Estate Investments Pty Ltd v GPT RE Ltd [2006] NSWCA 207 Letang v Cooper [1965] 1 QB 232 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 Sydney Markets Ltd v Wilson [2010] NSWADTAP 45 Thompson v Palmer (1933) 49 CLR 507 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Wilson v Sydney Markets Ltd [2009] NSWADT 256
Texts Cited:	Lewison, The Interpretation of Contracts (Sweet & Maxwell, 2007)
Category:	Principal judgment
Parties:	Hengfeng Cai (First Applicant - file 105191) Jing Gao (Second Applicant - file 105191) Hui…