Malouf v Manly Council (No 2)

Set aside by Appeal: Set Aside by Appeal Panel on 16/04/2003. (confirmed by Court of Appeal on 2/9/2004)

CITATION:	Malouf v Manly Council (No 2) [2002] NSWADT 200
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Michael Malouf RESPONDENT Manly Council
FILE NUMBER:	015065
HEARING DATES:	24/05/02
SUBMISSIONS CLOSED:	05/24/2002
DATE OF DECISION:	10/14/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	A New Tax System (Goods and Services Tax) Act 1999 (Cth) Interpretation Act 1987 Landlord and Tenant (Amendment) Act 1949 Local Government Act 1993 Retail Leases Act 1994 Roads Act 1993
CASES CITED:	Turner v York Motors [1951] 85 CLR 55 Collector of Customs v Perkins Shipping Pty Ltd [1989] 24 FCR 520 Botts v Grimme [2001] NSWADT 14 Canwan Coals Pty Ltd v Federal Commissioner Taxation [1974] 4 ALR 223 Kerridge Odeon Corporation v Auckland City Council [1966] NZLR 266 Botts v Grimme [2002] NSWADTAP 15
REPRESENTATION:	APPLICANT G Newport, barrister RESPONDENT R Bellamy, barrister
ORDERS:	1. An agreement may be subject to the Retail Leases Act 1994 notwithstanding the fact that it was entered subject to section 125 of the Roads Act 1993.; 2. The outdoor eating area which is the subject of this dispute is "premises" within the meaning of the definition of a retail shop for the purposes of the Retail Leases Act 1994. Those premises are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 of the Retail Leases Act 1994.; 3. The matter is to be relisted for a Directions Hearing to determine its future conduct.

1 Mr Michael Malouf is a sole trader of a business known as "Fusion Point" at Shop L, 1-21 Wentworth Street, Manly. Manly Council (“the Council”) is a statutory corporation under the Local Government Act 1993. These proceedings relate to an application brought by Mr Malouf with respect to a Deed of agreement (“the Agreement”) entered between Mr Malouf and the Council on 5 December 2000. Pursuant to the Agreement the Council agreed to grant Mr Malouf a Licence to occupy part of The Corso, Manly for the purpose of an outdoor eating area for restaurant premises occupied by Mr Malouf. Mr Malouf’s substantive claim seeks an Order that the Agreement is subject to the Retail Leases Act 1994 (“the RLA”) and relief from the Respondent taking action pursuant to terms of the Agreement.

2 Mr Malouf relied on a Statement of Evidence dated 8 May 2002 by Mr Michael George a town planning consultant. This statement provides a reasonable indication of the physical characteristics of the area in question. Photographs of the areas are annexed to Mr George’s statement. Written submissions provided by Mr Newport on behalf of Mr Malouf provide the following description which in the most part is not disputed:

“The designated areas are part of the road reserve but relevantly on the footway area as it is commonly known as distinct from the road carriageway.