Cai v Sydney Markets Ltd (No 2) - [2011] NSWADT 199

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Cai & ors v Sydney Markets Ltd (No 2) [2011] NSWADT 199
Hearing dates: On the papers
Decision date: 19 August 2011
Jurisdiction: Retail Leases Division
Before: M Chesterman, Deputy President
Decision:
1. Declare that an iPhone does not fall within the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding.
2. Declare that the Applicants in each proceeding are not entitled to sell or market for sale any cover which is labelled 'iPhone' or bears an 'iPhone' logo.
3. Declare that the term 'used for' in the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding means 'commonly or often used for'.
4. The parties are to pay their own costs of these proceedings.

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: Cai & ors v Sydney Markets Ltd [2011] NSWADT 107
Category: Principal judgment
Parties: Hengfeng Cai (First Applicant - file 105191)
Jing Gao (Second Applicant - file 105191)
Hui Xu (First Applicant - file 105196)
Xini Li (Second Applicant - file 105196)
Sydney Markets Ltd (Respondent - files 105191 and 105196)
Representation: Counsel
S Docker (Respondent)
Kemp Strang (Respondent)

File Number(s): 105191, 105196

decision

Relevant features of the proceedings so far

RETAIL LEASES DIVISION (M CHESTERMAN (DEPUTY PRESIDENT)): In these rather unusual proceedings, the question of principal importance is whether, in the context of contractual provisions defining what two couples carrying on businesses at 'stands' in a Sydney market are permitted to sell, an Apple iPhone should be held to be a 'music player' because its multiple capacities include those of an Apple iPod and of other devices whose functions include that of playing music.

This question was answered in the negative in Order 7 of my decision delivered on 17 May 2011 ( Cai & ors v Sydney Markets Ltd [2011] NSWADT 107), following a hearing on 28 and 31 March 2011 relating to two separate Applications (files 105191 and 105196) that were heard together.

The facts on which my determination of this question was based are set out in that decision, which I will refer to from now on as 'the principal decision'. Except so far as is necessary to explain the issues now to be resolved, I will not repeat them here.

In each of these matters, the Applicants are a married couple carrying on retail businesses in a number of stands in Paddy's Market (hereafter 'the Market'), pursuant to a pro forma form of agreement issued by the owner and headed 'Occupancy Agreement' ('the Occupancy Agreement'). The Market is situated in Haymarket, Sydney.

The Respondent to both Applications is Sydney Markets Ltd ('Sydney Markets'), the owner of the Market.

Under the Occupancy Agreement and an accompanying contractual document called Sydney Markets Rules, the Applicants are…

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 199
Decision Date: 19 August 2011

CaseChat Overview and Summary

In Cai v Sydney Markets Ltd (No 2), the respondents, who operated retail shops within a Sydney shopping centre, brought proceedings against the appellant, Sydney Markets Ltd. The dispute centred on the interpretation of the occupancy agreements, specifically regarding the category of goods the respondents were permitted to sell. The respondents sought to sell iPhones, which they claimed fell within the category 'Music Players' as defined in the occupancy agreements. Sydney Markets Ltd argued that iPhones were not 'Music Players' and that the respondents were in breach of the agreements by selling them.

The legal issues before the court included whether an iPhone was a 'Music Player' under the agreements and whether the term 'used for' in the definition of 'Music Players' should be interpreted as 'commonly or often used for'. Additionally, the court needed to determine whether the respondents were estopped from arguing that iPhones were not 'Music Players' due to any representations made by Sydney Markets Ltd. The court had to interpret the terms of the occupancy agreements and consider whether any estoppel applied.

The court found that an iPhone did not fall within the category 'Music Players' as defined in the occupancy agreements. It determined that the term 'used for' meant 'commonly or often used for', and iPhones did not meet this criterion. The court also rejected the respondents' estoppel argument, finding that there were no representations made by Sydney Markets Ltd that could estop them from enforcing the terms of the agreements. Consequently, the court declared that the respondents were not entitled to sell iPhones and that the agreements were not varied to include iPhones as 'Music Players'.

The court ordered that an iPhone did not fall within the category 'Music Players' as defined in the occupancy agreements. It also declared that the respondents were not entitled to sell or market for sale any cover labelled 'iPhone' or bearing an 'iPhone' logo. Furthermore, the term 'used for' in the category 'Music Players' was interpreted to mean 'commonly or often used for'. Finally, the parties were to bear their own costs of the proceedings.

Orders

Orders of the court

1. Declare that an iPhone does not fall within the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding.

2. Declare that the Applicants in each proceeding are not entitled to sell or market for sale any cover which is labelled 'iPhone' or bears an 'iPhone' logo.

3. Declare that the term 'used for' in the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding means 'commonly or often used for'.

4. The parties are to pay their own costs of these proceedings.

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 (No 2) [2011] NSWADT 199
Hearing dates:	On the papers
Decision date:	19 August 2011
Jurisdiction:	Retail Leases Division
Before:	M Chesterman, Deputy President
Decision:	1. Declare that an iPhone does not fall within the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding. 2. Declare that the Applicants in each proceeding are not entitled to sell or market for sale any cover which is labelled 'iPhone' or bears an 'iPhone' logo. 3. Declare that the term 'used for' in the category 'Music Players' as defined under the Occupancy Agreement between the Applicants and the Respondent in each proceeding means 'commonly or often used for'. 4. The parties are to pay their own costs of these proceedings.
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:	Cai & ors v Sydney Markets Ltd [2011] NSWADT 107
Category:	Principal judgment
Parties:	Hengfeng Cai (First Applicant - file 105191) Jing Gao (Second Applicant - file 105191) Hui Xu (First Applicant - file 105196) Xini Li (Second Applicant - file 105196) Sydney Markets Ltd (Respondent - files 105191 and 105196)
Representation:	Counsel S Docker (Respondent) Kemp Strang (Respondent)
File Number(s):	105191, 105196