Davis v Sydney Harbour Foreshore Authority

Appeal Panel - Internal

CITATION:	Davis v Sydney Harbour Foreshore Authority [2010] NSWADTAP 43
PARTIES:	APPELLANT Evan Davis RESPONDENT Sydney Harbour Foreshore Authority
FILE NUMBER:	99072
HEARING DATES:	12 February 2010
SUBMISSIONS CLOSED:	12 February 2010
DATE OF DECISION:	16 June 2010
BEFORE:	Chesterman M - Deputy President; Bluth D - Judicial Member; Tyler T - Non-Judicial Member
CATCHWORDS:	Retail lease – holding-over – misleading and deceptive conduct – unconscionable conduct
DECISION UNDER APPEAL:	Davis v Sydney Harbour Foreshore Authority (No 2) [2009] NSWADT 276
FILE NUMBER UNDER APPEAL:	075019
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557 Davis v Sydney Harbour Foreshore Authority (No 2) [2009] NSWADT 276 Hornsby Building Information Centre Pty Ltd v Sydney Building Sydney Information Centre (1978) 140 CLR 216 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Satchithanantham v Zeaiter Corporate Holdings Pty Ltd [2009] NSWADTAP 53
REPRESENTATION:	APPELLANT Evan Davis RESPONDENT Sydney Harbour Foreshore Authority
ORDERS:	1.The appeal is dismissed 2. Unless within 21 days the Appellant files and serves submissions showing why costs should not be awarded against him, the Appellant is to pay on a party-party basis the Respondent’s costs of and incidental to this appeal 3. If submissions are filed pursuant to Order 2, the Respondent must file and serve submissions in response within a further 21 days 4. The Appeal Panel will determine the matter of costs without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

1 On 4 November 2009 the Tribunal dismissed an application by Mr Evan Davis against the Sydney Harbour Foreshore Authority (‘SHFA’).

2 This is an internal appeal against that dismissal, made under Chapter 7 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). The appeal was made on questions of law by the applicant Davis. He also sought leave to extend the appeal to the merits of the Tribunal’s decision.

3 The appeal on questions of law is based on claims that the Tribunal:

1) did not apply the relevant statutory provisions to the facts of the case;

2) applied the wrong statutory provision of the Retail Leases Act NSW 1994 (‘the RLA’) to the facts of the case;

3) misinterpreted the words and statutory requirements of the RLA;

4) made findings of facts where there was no evidence to support such findings;

5) did not make findings of fact were there was conclusive evidence to support a finding;

6) did not give the applicant an adequate opportunity to present his case;

7) only referred to two of the allegations out of the applicant’s alleged six grounds of misleading and deceptive conduct;

8) did not make a finding in favour of the applicant when the applicant’s case had been proved; and

9) only referred to two grounds of alleged unconscionable conduct when the applicant alleged eight grounds of such conduct.

4 In giving reasons for…