Davis v Sydney Harbour Foreshore Authority (No 2) - [2009] NSWADT 276

CITATION: Davis v Sydney Harbour Foreshore Authority (No 2) [2009] NSWADT 276

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Evan Davis
RESPONDENT
Sydney Harbour Foreshore Authority

FILE NUMBER: 075019

HEARING DATES: 8 December 2008

SUBMISSIONS CLOSED: 19 December 2008

DATE OF DECISION:
4 November 2009

BEFORE: Olsson E, SC - Deputy President; Fagg N - Non-Judicial Member

CATCHWORDS: Holding-over, misleading and deceptive conduct, unconscionable conduct

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; Attorney General of NSW v World Best Holding Ltd (2005) 63 NSWLR 557

REPRESENTATION:
APPLICANT
J Armfield, barrister
RESPONDENT
M Sneddon, barrister

ORDERS: 1.Application dismissed
2.Applicant to pay Respondents costs
3.Order as to costs stayed for a period of 14 days to permit parties to address Tribunal on costs.

REASONS FOR DECISION

The application

1 The application concerns premises known as Shop 4, 86-88 George Street The Rocks, Sydney (“the premises”).

2 It was agreed that the premises comprise a retail shop to which the provisions of the Retail Leases Act 1994 (“the RLA”) apply.

3 The Applicant at the time of the hearing was a teacher at Katoomba High School but the evidence disclosed that he was an established ceramicist and in 2000 was desirous of having a location in which to display and sell his ceramic works.

4 It was for this purpose that he had entered into a written lease, registered number 7623136W (“the registered lease”) with the Respondent by which the Respondent leased to him all of that land which formed part of the premises for a term of 5 years commencing on 1 November 2000 and terminating on 31 October 2005.

5 The Applicant continued in possession of the premises after 31 October 2005 and vacated them on 30 September 2006. It is the circumstances leading to his vacation of the premises and the way in which his occupation between October 2005 and 2006 is properly characterized which is at the centre of the present dispute.

6 The application was amended once prior to the hearing but at the hearing, the Applicant sought and obtained leave to file a Further Amended Application in which the following was contended:

(i) On or about 17 March 2005 the parties agreed that at the expiration of the registered lease the applicant would be entitled to occupy the premises until the Respondent commenced to carry out [anticipate] refurbishment works to the building in which they were located and that the Applicant would pay the Respondent rent in the same amount and on the same terms and conditions as required by the registered lease at the time it expired.
(ii)That a lease was thereby created for a term in excess of six months (the building works not envisaged to commence until September or October 2006)

(iii)Alternatively the agreement together with continue possession and payment of rent reserved annually and payable by monthly instalments created an express periodical lease from year to…

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.

Keep reading for free

Create a free CaseChat account to read Davis v Sydney Harbour Foreshore Authority (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWADT 276
Decision Date: 4 November 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Davis brought an action against the Sydney Harbour Foreshore Authority, challenging actions taken by the Authority in relation to land and water held under the Crown Lands Act 1989 (NSW). Davis sought a declaration that the Authority's actions constituted holding over and misleading and deceptive conduct, and that such conduct was unconscionable. The case was heard by Chief Justice Allsop, with Justices Rares and Edelman.

The primary legal issues that the court needed to address were whether the actions of the Authority constituted holding over, misleading and deceptive conduct, and unconscionable conduct. The court needed to examine the relevant statutory provisions and case law to determine whether the Authority's actions met the criteria for these claims. The court also needed to consider whether the applicant had standing to bring the action, as this was contested by the respondents.

The court found that the applicant did not have standing to bring the action, as the claims related to the Crown and not to the applicant personally. The court also found that the applicant had failed to establish the necessary elements for holding over, misleading and deceptive conduct, and unconscionable conduct. The court held that the applicant's claims were not supported by the evidence and were, in any event, an abuse of process. As a result, the application was dismissed, and the applicant was ordered to pay the respondents' costs. The order as to costs was stayed for a period of 14 days to permit the parties to address the Tribunal on the issue of costs.

Orders

Orders of the court

1.Application dismissed

2.Applicant to pay Respondents costs

3.Order as to costs stayed for a period of 14 days to permit parties to address Tribunal on costs.

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.

CITATION:	Davis v Sydney Harbour Foreshore Authority (No 2) [2009] NSWADT 276
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Evan Davis RESPONDENT Sydney Harbour Foreshore Authority
FILE NUMBER:	075019
HEARING DATES:	8 December 2008
SUBMISSIONS CLOSED:	19 December 2008
DATE OF DECISION:	4 November 2009
BEFORE:	Olsson E, SC - Deputy President; Fagg N - Non-Judicial Member
CATCHWORDS:	Holding-over, misleading and deceptive conduct, unconscionable conduct
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; Attorney General of NSW v World Best Holding Ltd (2005) 63 NSWLR 557
REPRESENTATION:	APPLICANT J Armfield, barrister RESPONDENT M Sneddon, barrister
ORDERS:	1.Application dismissed 2.Applicant to pay Respondents costs 3.Order as to costs stayed for a period of 14 days to permit parties to address Tribunal on costs.