Malouf v Manly Council (No 2)

[2002] NSWADT 200

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.

The designated areas immediately abut and have a function which is integrated with the Applicant's business in that the restaurant is within the shop and the food preparation and kitchen facilities together with some seating is located inside the shop and the designated areas are used for the consumption of food or drinks, at tables but serviced from the shop.

The designated areas are relevantly regulated by the Roads Act 1993.

The designated areas are in part, located under the existing built and permanent awning structure extending from the said shop over the Council 's footpath.

Furthermore, the said areas have, in part a retractable awning extending from the shop over the said designated areas. The said areas are also readily identified by different colouring on the footpath paving and in part by cylindrical markers or structures like bollards.”

3 The matter in issue in these proceedings, as I see it, is whether the Agreement whereby Mr Malouf occupies the outdoor eating area is governed by the RLA. The Council has challenged the Tribunal’s jurisdiction on the basis that no retail shop lease exists between the parties. In order for the Tribunal to have jurisdiction, there must be a dispute between parties to a retail shop lease concerning the liabilities or obligations which arose under the lease. If no retail shop lease exists between the parties the Tribunal has no jurisdiction in relation to the dispute.

4 A “retail tenancy claim” is defined in section 70 of the RLA as follows:

“70 Definitions
In this Division:
retail tenancy claim means any of the following:
(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:
(i) a claim for the payment of a specified sum of money,
(ii) a claim for relief from payment of a specified sum of money,
(iii) a claim for the doing of specified work or the provision of specified services,
(iv) a claim for the surrender of possession of specified premises,
(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,
(vi) a claim for relief against forfeiture,
(vii) a claim regarding the rectification of the lease,
(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,
(ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease,
(x) without limiting the generality of subparagraph (i), a claim for compensation under section 10,
(b) an application under section 19 (3) or 31 (3) by a specialist retail valuer,

(c) a claim against a specialist retail valuer under section 19A (3) or 31A (3) for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information.”

5 A “retail tenancy dispute” is defined in section 63 of the RLA as follows:

“63 Interpretation
(1) In this Part:
retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates.”

6 An affidavit of Lisbeth Jane Lawsen sworn 16 May 2002 annexes a copy of Mr Malouf’s Outdoor Eating Area Licence application dated 22 June 2000 in which he sought approval to use part of the Council's land for the purposes of an outdoor eating area adjacent to the cafe premises. The Agreement is also annexed. The Council argues that the 22 June 2000 application is made under section 125 of the Roads Act 1993 and Approval was granted subject to the Roads Act, 1993. The Preamble to the Deed provides that the Deed is subject to the Roads Act, 1993.

7 The Preamble relevantly states:

“WHEREAS in accordance with Section 125 of the Roads Act, 1993, the Council has agreed to grant to the Licensee on the terms and conditions hereinafter appearing a Licence … for the purpose of establishment of an outdoor eating area for the restaurant premises occupied by the Licensee known as Fusion Point (the business) BEING those premises as defined in the Roads Act, 1993…”

8 Section 125 of the Roads Act 1993 states:

“125 Approval to use footway for restaurant purposes

(1) A council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road (being a public road that is vested in fee simple in the council) to use part of the footway for the purposes of the restaurant.

(2) An approval may be granted on such conditions (including conditions as to payments in the nature of rent) as the council determines.

(3) An approval may not be granted in respect of a footway of a classified road except with the concurrence of the RTA.

(4) The term of an approval is to be such period (not exceeding 7 years) as is specified in the approval.

(5) An approval lapses at the end of its term or, if the part of the footway the subject of the approval ceases to be used for the purposes of a restaurant, when that use ceases.”

9 Paragraphs 3 and 4 of the Agreement state:

“3. The Licence is for a period of two years with a one year option, subject to past and continuing compliance with all Licence conditions and review of fees in accordance with the annual Fees and Charges set. The Licence commences on 1 December 2000 and expires on 30 November 2002. If the Licensee wishes to extend the Licence for the additional term of one (1) year as mentioned above then it must give to Council not less than two (2) calendar months' notice in writing and, subject to the performance of the Licensee having been deemed satisfactory by Council during the currency of the Agreement, then Council shall grant a renewal as aforesaid subject always to Clause 1 as to fees.

4. In addition to any rights which the Council may have upon default by the Licensee the Council shall have the right at any time and for any reason to terminate this Licence at six months' notice in writing to the Licensee whereupon the Licensee shall remove any improvements erected by the Licensee on the Outdoor Eating Area and the Licensee shall not be entitled to any compensation for early determination of the Licence.”

10 The first question for determination posed by the Council is whether the Agreement is subject to the RLA in light of Section 125 of the Roads Act 1993.

11 Mr Bellamy for the Council argues that the Roads Act was in force prior to the introduction of the RLA. It provides the Council with complete power to grant approval subject to conditions. Section 125 of the Roads Act provides a specific power. The RLA is of general operation. It is intended to be general subject to exceptions.

12 Mr Bellamy concedes that some of the area in question is not covered by the Roads Act. The area identified as "Existing footpath" is roadside. The area identifies as "Outdoors Cafe Section" is Council land and therefore not subject to the Roads Act. The Agreement mistakenly refers to this as subject to the Roads Act.

13 Mr Newport for Mr Malouf argues that the Council’s reliance on the Roads Act is based on a misunderstanding of the issues in dispute. Section 125 of the Roads Act gives the Council the power to grant the approval. It permits a unilateral act of authority on the part of the Council. The approval was granted pursuant to that authority. The Agreement is consistent with the approval. The agreement is what is being considered.

14 Mr Newport asserted that the RLA was introduced to control the relationship between parties to retail shopping leases. The second reading speech on the introduction of the Retail Leases Amendment Bill into the NSW Legislative Council on 1 December 1998 refers to “a war going on in the shopping centres around Australia, between retail tenants and property owners and managers." The RLA was said to be the peace agreement negotiated to end the war. Certain leases are excluded from coverage by the RLA. The legislature could have excluded any approval pursuant to the Roads Act. The fact that the legislature did not do so suggests that agreements may be subject to the RLA despite the fact that they were entered subject to section 125 of the Roads Act 1993.

Finding

15 I agree with the argument presented by Mr Newport for Mr Malouf. The RLA was introduced after the Roads Act. There are several exceptions to the operation of the RLA. The legislature could have excluded agreements entered subject to section 125 of the Roads Act 1993 from the operation of the RLA but did not do so. There is no other reason to conclude that the legislature intended that those agreements be excluded from the operation of the RLA. In my view an agreement may be subject to the RLA notwithstanding the fact that it was entered subject to section 125 of the Roads Act 1993.

Second Question for Determination

16 As I understand it, the second question for determination posed by the Council is whether the outdoor eating areas are "premises” within the meaning of the definition of a retail shop for the purposes of the RLA.

17 The terms "Retail Shop " and "Retail Shop Lease" are defined in section 3 of the Retail Leases Act as follows:

“3 Definitions
retail shop means premises that:

(a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or
(b) are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre.

Note. Section 5 limits the retail shops to which this Act applies.

retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:

(a) whether or not the right is a right of exclusive occupation, and
(b) whether the agreement is express or implied, and
(c) whether the agreement is oral or in writing, or partly oral and partly in writing.

Note. Section 6 limits the retail shop leases to which this Act applies.”

18 Mr Bellamy argues that the term "Premises" does not mean "land". He submitted that the Tribunal should adopt an orthodox approach and give words their plain meaning as illustrated and identified by the context in which they appear. Identification should be by reference to context because it identifies the intention of the legislature from the language of the statute as a whole. All words of the statute are given some meaning. No words are superfluous.

19 Mr Bellamy referred to the use of the word "land" elsewhere in the RLA: section 24B of the RLA refers to "unrelated land"; section 26 of the RLA refers to "the land concerned". Section 24B of the RLA uses the expression "land" in its widest sense; therefore the legislature could not have intended the word "premises" to mean "land".

20 Mr Bellamy referred to various definitions of the term "premises":

Blacks Law Dictionary, seventh edition:
"a house or building along with its grounds "
Butterworths Concise Australian Legal Dictionary, second edition:
"buildings, self-contained apartments, or rooms within buildings or land"
Stroud's judicial dictionary of words and phrases:
"premises may be confined to buildings by its context"
The Macquarie Dictionary second edition:
"a tract of land; a house or building with the grounds etc belonging to it"
The New Shorter Oxford English Dictionary on historical principles:
"a house or building with its grounds etc. Also, (a part of) a building housing a business etc"

21 Mr Bellamy argues that these definitions have common themes - a house or land howsoever defined. A house or building plus grounds. He further argues that a reference to premises is a reference to a shop. The term "shop" is used in reference to a retail shop. It is also used in reference to the physical manifestation of a shop. The term "shop" is found on its own and is therefore another element to ascertain the legislature's intention. The Tribunal should have regard to various references to the term "shop" in schedule 2 of the RLA:

"access to shop" with respect to hours of access to shop outside trading hours.

"fittings in shop" with respect to the Lessor's requirements as to quality and standard of fittings in shop.

"owner of shop" with respect to whether the Lessor is the owner of the shop

22 Mr Bellamy submitted that a shop is a building enclosing an area where goods are sold retail. He referred to various definitions of the term " shop ":

The Macquarie Dictionary second edition:
“a building where goods are sold retail.”
The New Shorter Oxford English Dictionary on historical principles:
“a house or building where goods are made or prepared for sale and sold”

23 Section 3 of the RLA defines the term "outgoings" as follows:

“ outgoings means a lessor's outgoings on account of any of the following:

(a) the expenses directly attributable to the operation, maintenance or repair of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building, …”

(b) rates, taxes, levies, premiums or charges payable by the lessor because the lessor is the owner or occupier of any such building or the land on which it is erected or is the supplier of a taxable supply (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth) in respect of any such building or land.”

24 Mr Bellamy argues that this definition indicates that it was the legislature’s intention that for the purposes of the RLA a retail shop is located in a building.

25 Section 19 of the RLA deals with reviews to current market rent. Section 19(d) provides:

"(d) The lessor must, not later than 14 days after a request by a specialist retail valuer appointed under paragraph (b), supply the valuer with relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the current market rent."

26 Mr Bellamy argues that this reference also suggests that it was the legislature's intention that retail shops governed by the RLA are retail shops located in a building. Similarly, references to the location of the retail shop within a building can be found in sections 23, 24, 25A(2), 25B(2), 26B(2) 33, 35 and 36. He submitted that the use of the term "premises" within the RLA connotes a shop located within a building. The provisions of the RLA which refer to building, outgoings etc, can not be excluded from consideration because the area in question is not within a building. The RLA is not intended to apply to the area in question as it would not be intended to apply to a boy selling papers on the street.

27 Mr Bellamy further argues that within the meaning of the term in the RLA "Shop" is not the same as "retail shop". Section 5 of the RLA provides for exceptions to the application of the Act to certain shops which are excluded from its operation. Section 34A of the RLA provides for relocation of a lessee’s business to an alternative shop within a retail shopping centre. This suggests that at least for the purposes of a shop within a retail shopping centre a shop is an area to trade within a building.

28 In support of his argument that the outdoor eating area is not premises within the meaning of the RLA, Mr Bellamy referred to the views expressed by Dixon J in Turner v York Motors [1951] 85 CLR 55, a matter in reference to the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) introduced to protect tenants because of a housing shortage after World War II. Dixon J stated at 75:

“Having regard to the history of the provision and the dictionary meaning of the word "premises", I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises.”

29 Also in Turner v York Motors Williams J stated at 83:

“Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole.”

30 Mr Bellamy submitted that it is difficult for the Applicant to show that there is a shop for the purposes of the RLA. The area in question is “not a shop”. The use of the area is restricted. He referred to Schedule 1 of the RLA which refers to Retail shop businesses. Schedule 1 is not to define a retail shop. It sets out what can be a retail undertaking. Included in this schedule are “Restaurants, cafeterias, coffee lounges and other eating places”. He said that certain characteristics are evident in these premises: cooking area; food storage area; cash register; food disposal area; etc. The area in question has none of these characteristics. It is therefore not a shop.

Mr Malouf’s Case

31 Mr Newport on behalf of Mr Malouf challenged Mr Bellamy’s arguments. He argued that the various elements of the definition of Retail Shop Lease must be examined, and examined in the context of the RLA. A Retail Shop relevantly means premises used wholly or pre-dominantly for the carrying on of one or more of the businesses specified in Schedule 1 of the RLA, whether or not in a retail shopping centre. Schedule 1 identifies "Retail Shop Businesses" and relevantly provide for "Restaurants, cafeterias, coffee lounges and other eating places." A Retail Shop Lease or Lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop. The RLA does not define premises as found in the definition of a Retail Shop.

32 Mr Newport submitted that the Agreement on its face constitutes an agreement for the purposes of the definition of a Retail Shop Lease. The preamble to the Agreement states "The Council has agreed to grant".

33 Both the council and Mr Malouf are persons for the purposes of the RLA. "A person includes an individual, a corporation and a body corporate or politic": section 21 Interpretation Act, 1987. A Council is a statutory corporation: Chapter 9 Local Government Act 1993 p. 2751.

34 The Council has clearly made a grant to Mr Malouf. The preamble to the Agreement states at line two "Council has agreed to grant to the licensee". The grant was for value. The Agreement at paragraph 1 has set out the licence fee to be set annually for the grant of the licence and the sum is set out in Schedule A to the Agreement. A Right of occupation has been given. The preamble to the Agreement states at lines three and four "right to occupy that part of The Corso at Manly as outlined in red on the plan annexed hereto and marked Schedule B".

35 The Right of occupation given is for premises. The preamble to the Agreement at line six refers to the licensed area being "for the purpose of establishment of an outdoor eating area for the restaurant premises". The preamble describes the areas as premises. However the matter of interpretation or construction of the term "premises" is detailed in the definition of retail shop and applies equally to the definition of retail shop lease.

36 Mr Newport submitted that the elements of the definition of a retail shop need to be examined. The elements of the definition to be examined are:

· premises
· that are used wholly or predominantly
· for the carrying on of one or more of the business specified in Schedule 1.

37 The outdoor eating area identified by reference to Schedule A and to Schedule B to the Agreement clearly indicate such areas and identify that the purpose will be for the establishment of an outdoor eating area for the restaurant premises and there shall be a permitted 14 tables with 44 chairs in those separate definable areas. The definable areas are wholly or predominantly used for that purpose.

38 A reference to Schedule 1 of the RLA identifies relevant types of retail shop businesses as "restaurants, cafeterias, coffee lounges and other eating places". Within that category of businesses, the outdoor eating areas are “other eating places". The outdoor eating areas are therefore used for the carrying on of one or more of the businesses specified in Schedule 1.

39 Mr Newport submitted that the areas in question are premises for the purposes of the definition of a retail shop. He argued that the term "Premises" is vague and must as an elementary principle of construction, be read in the context of the relevant parts of the RLA: Turner v York Motors Pty Limited [1951] 85 CLR 55 per Dixon J at 75. More specifically, the term premises as used in the definition of "Retail Shop" is to be read in the context of definitions and statutory provisions. The relevant definitions are to be used to assist in the construction of the Act except insofar as the context or subject matter otherwise indicates or requires: section 6 Interpretations Act 1987.

40 Mr Newport referred to some judicial pronouncements on the term "Premises". In Turner, the High Court considered the term "premises" within the context of the definition of "Prescribed Premises" as defined by s.8 of the Landlord and Tenant (Amendment) Act 1949: Dixon J stated at page 75 of the decision.

"The question depends entirely upon the application of the land or the definition of 'prescribed premises' in s.8 and in the end that comes down to the meaning of the word 'premises'. … In three jurisdictions the word 'premises' as used was interpreted as not including 'vacant land without more' but as requiring something in the nature of buildings before land could be considered 'premises'. …

According to Lord Chelmsford, speaking for the Privy Council, the word 'premises' in popular language is applied to buildings, although in legal language it means the subject or thing previously expressed (Beacon Life and Fire Assurance Co v. Gibb (4)). This statement is confirmed by the Oxford New English Dictionary which … gives the meaning of the plural 'premises' as 'house or building with its grounds or other appurtenances.'

The word 'premises' is no doubt a vague one but in legislation of this sort there are great advantages of a test of its application which is objective and consists in a readily ascertainable physical state. Having regard to the history of the provisions and the dictionary meaning of the word 'premises', I think that we should adhere to the rule laid down that bare land without buildings if let for the purposes of occupation as bare land, does not constitute 'premises'. If land is let upon terms that the tenant shall or may erect buildings which are not removable by him but will pass with the freehold, then I would say that the land and building when erected would form 'premises'."

41 Also in Turner, Williams J at 83 stated:

"The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular Statute must be obtained from the context in which it appears and from an examination of the scope of purpose of the Statute as a whole - there are cases decided under other Acts in which the same work has been held not to include bare land. ".

42 In Collector of Customs v. Perkins Shipping Pty Ltd [1989] 24 FCR 520 the Full Court of the Federal Court considered the meaning of 'residential premises' in the Customs Act 1901 and at 523-524 the Court held:

"In popular usage the word 'premises' commonly refers to houses and buildings but it is a word capable of wider flexible meaning depending on the context in which it is found ...

There is a plethora of cases where 'premises' in different contexts have been construed. Counsel drew attention to many of these, but as the Decisions depend on the legislation in question they are of limited assistance".

43 Mr Newport's primary submission is that for the purposes of the definition of a "Retail Shop", premises should be construed to be a definable area whether outside a building or in a building or part of a building. To that end he submits that the outdoor eating area is clearly a definable area and constitutes premises within the definition.

44 Mr Newport indicated that if his primary submission is not accepted his second and alternative submission is that the term "Premises" requires that there be a building or part of a building. In that respect the Applicant contends that the outdoor eating areas with the relevant appurtenances constitute part of a building.

45 Mr Newport submitted that support for his primary submission is found from a comparison of the definition of "retail shop" and "retail shopping centre". He argued that it is clear that a centre means a cluster of premises that relevantly must all have the attribute that such premises are located "in the one building or in two or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops. This is to be compared with a definition of "retail shop" where premises are relevantly to be used for the carrying on of a schedule 1 business. There is an absence of the requirement that the premises are to be in a building.

46 The draftsperson must have intended the omission and this argument is further supported by the inclusion of "restaurants, cafeterias, coffee lounges and other eating places" among the retail shop businesses contained in schedule. The term "other eating places" makes the distinction between a place outside a building and a building. An eating place embraces an outdoor eating area such as is the areas occupied by the applicant.

47 The scheme or purpose of the Act is to regulate the conduct of parties in specific retail leasing transactions. Certain retail shops are excluded from the operation of the RLA. The whole scheme does not require the definition of a retail shop to be read down to require that the shop be within a building. The second reading speech on the introduction of the RLA provides no suggestion that the operation of the Act be limited in that way.

48 Mr Newport submitted that while the definition of Outgoings found in section 3 of the RLA refers to buildings, this reference will only be applicable where it is relevant. If there are no outgoings, the definition is not relevant. It does not limit the definition of a retail shop to a building. Part 4 of the RLA deals with alterations and other interference with a shop and specifically refers to alterations or refurbishment of a building. Similarly sections 35 and 36 of the RLA deal with demolition and damaged premises and refer to a building of which "the retail shop forms part". Mr Newport submitted that this is neither determinative nor inconsistent with the interpretation of a retail shop which embraces a place such as the outdoor eating areas under consideration. He argued that certain provisions in the RLA will not apply to certain shops because of the specific circumstances of that shop. In that situation, the provision will simply have no application because it is not relevant. For example, section 24B of the RLA is a specific provision relating to “other land”. If other land was available the provision could apply but it has no application to the present circumstances. Section 26 of the RLA is a clear reference to the recovery of land tax. It is not relevant to this matter. Similarly, sections 19(d), 24B, 23, 25A, 25B, 26, 33 and 34A have no application except where they are relevant. If there is no building, the provisions will not be relevant. There is no requirement for a building in all circumstances.

49 In reply to Mr Bellamy’s argument that the RLA makes reference to shops other than retail shops, Mr Newport submitted that the preamble to the RLA indicates that the Act applies to certain retail shops. The RLA therefore has no role to play with respect to other shops. It is an absurdity to read provisions out of context. The heading to section 5 of the RLA is “Certain retail shops excluded from the operation of this Act”. This suggests that reference to a shop in the RLA is an abbreviation for a reference to a retail shop. Shops referred to in the preamble are retail shops. Schedule 2 of the RLA refers back to the requirements regarding a disclosure statement found in sections 11 and 11A of the Act. Any reference to a shop in sections 11 and 11A of the RLA is therefore a reference to a retail shop.

50 Mr Newport submitted that section 79 of the RLA is entirely consistent with the proposition that a retail shop embraces premises other than a building. That section provides:

“79 Leases partly for retail shops and partly for other premises

If a retail shop lease applies to a retail shop as well as to other separate or adjoining premises that are not a retail shop, this Act applies to the lease only to the extent that the lease is a lease of a retail shop.”

51 In support of this view, Mr Newport referred to the decision in Botts v Grimme [2001] NSWADT 14 where of Judicial Member Fox observed at paragraph 27:

"I'm satisfied that any part of a building capable of being separately described and separately let, licensed or conveyed can be separate premises within the meaning of s79."

52 Mr Newport submitted that the outdoor eating areas are clearly definable space. Being a definable space they constitute premises within terminology dealing with leasing. This construction is entirely consistent with the statutory context and to that end the general principle of the High Court in Turner, supra, requiring that there be more than bare land is not appropriate. The context prevails so that the purpose can be achieved. It is submitted that by the very reference to a Retail Shop Lease there is no specific limiting provisions which require that a Retail Shop must exclusively be located within a building.

53 With respect to the definition of a retail shop and the need for premises to be used wholly or predominantly for the carrying on of one or more of the business specified in Schedule 1, Mr Newport referred to the decision in Canwan Coals Pty Ltd v Federal Commissioner Taxation [1974] 4 ALR 223 where at page 228 Sheppard J commented on the ejusdem generis rule as follows:

“In R v Regos (1947) 74 CLR 613 at 623-4; [1947] ALR 308 at 310, Latham CJ, speaking of the ejusdem generis rule, said: "The rule is that general words may be restricted to the same genus as the specific words that precede them ( Thames & Mersey Marine Insurance Co Ltd v Hamilton Fraser & Co (1887) 12 App Cas 48A a1490). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co v S S Knutsford Ltd [1908] 2 KB 385, it was pointed out that 'Unless you can find a category there is no room for the application of the ejusdem generis doctrine'--per Farwell LJ [1908] 2 KB at 403; see also per Vaughan Williams LJ [1908] 2 KB at 395, and per Kennedy LJ [1908] 2 KB at 409. In Mudie & Co v Strick (1909) 100 LT 701 at 705, Pickford J said: 'You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then . . . you must read all the particular words separately, and take the general words separately also'.

In S S Magnhild v Mclntyre Bros & Co [1990] 3 KB 391, there is a full discussion of the rule by McCardie J in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things 'possess some common and dominant feature' so that they can be described as constituting a genus distinguished by that feature."

54 The principle is that where general words follow specific words the general words are limited to things of the like kind as the specific words. Before this principle applies, a genus, i.e. a like group of matters, must be established. Mr Newport submitted that the genus is established in that restaurants, cafeterias and coffee lounges are places where persons sit down and consume either liquid or food. These are the relevant common themes and not those referred to by Mr Bellamy. The term eating places is entirely consistent with that genus, although an eating place arguably requires an area and not necessarily a building. The term "eating place" both contemplates but is not restricted to outdoor eating areas.

55 Mr Newport’s submission is that in the circumstances of this dispute, where that term is one that is understood within a trade or business, little assistance would be gained from the dictionary meaning. He referred to the decision in Kerridge Odeon Corporation v Auckland City Council [1966] NZLR 266 at 269 per T A Gresson J as authority for the proposition that if a statute is one passed with reference to a particular trade or business and words are used therein which everybody conversant with that trade or business knows and understands to have a particular meaning then the words are to be construed as having the particular meaning, which may differ from the ordinary or popular meaning. Section 78 of the RLA provides for an interpretation based on industry practice as follows:

“78 Interpretation based on industry practice

In the interpretation of this Act, a court (as defined for the purposes of Part 8) is to have regard to accepted practices and interpretations within the industry concerning the leasing of retail shops.”

56 Mr Newport submitted that the term "other eating places" must be construed as including outdoor eating areas such those being considered. It follows, in his submission, that such eating places constitute premises used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 for the purposes of the definition of a Retail Shop. The definitions cited above support this conclusion. The context of the Act does not indicate otherwise. Indeed an examination of other statutory provisions does not indicate or require any other construction.

Finding

57 While I agree with Mr Bellamy’s argument that the RLA makes reference to shops other than retail shops, and therefore any reference to a shop in the RLA is not necessarily a reference to a "retail shop", I agree with Mr Newport that those references must be read in context. The RLA governs the relationship between the parties to certain retail shop leases. The RLA therefore has no role to play with respect to other shops.

58 I do not agree with Mr Bellamy’s argument that it was the legislature’s intention that the term "premises" within the RLA necessarily refers to a shop located within a building or that retail shops governed by the RLA are retail shops located in a building. I do not accept that the various provision of the RLA to which Mr Bellamy referred suggest that to be the case. I agree with Mr Newport that it is conceivable that some provisions of the RLA will have no application to a lease as a consequence of the particular circumstances of an individual lease.

59 I also agree with Mr Newport’s submission that a comparison of the definitions of "retail shop" and "retail shopping centre" is useful in clarifying this issue. A centre means a cluster of premises that are located in one or more buildings. In comparison, the definition of "retail shop" contains no requirement that the premises be in a building. It is reasonable to surmise that the legislature must have intended that omission.

60 I accept the arguments presented on behalf of Mr Malouf that there is no specific limiting provisions which require that a Retail Shop must exclusively be located within a building. In my view, the passage from the decision in Botts v Grimme referred to by Mr Newport is a correct statement of the law insofar as section 79 of the RLA is concerned. Note that Judicial Member Fox’s decision in Botts v Grimme was the subject of appeal but the Appeal Panel made no comment in relation to the quoted passage: Botts -v- Grimme [2002] NSWADTAP 15. Similarly, in my view, a definable area capable of being separately described and separately let, licensed or conveyed, whether outside a building or in a building or part of a building, can be premises for the purposes of the definition of a "Retail Shop".

61 I am satisfied that the outdoor eating areas which are the subject of this dispute are a clearly definable area capable of being separately described and separately let, licensed or conveyed. I have therefore reached the conclusion that the outdoor eating areas constitute premises within the meaning of the definition of a "retail shop".

62 Having considered what was said about the ejusdem generis rule, I agree with Mr Newport’s argument that the use of the words "restaurants", "cafeterias" and "coffee lounges" before the words " and other eating places" does indicate that the legislature contemplated a particular kind of establishment. What it had in mind was places where persons sit down and consume either liquid or food. The expression "other eating places" would include an outdoor eating area of the kind which is the subject of this dispute. I am also satisfied that the area in question is wholly or predominantly used for that purpose.

63 It follows that I am satisfied that the outdoor eating area which is the subject of this dispute constitute premises that are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 of the RLA.

64 Having reached that conclusion, there is no reason to consider Mr Newport’s alternative submission that the designated areas are a building or a part of a building.

65 The matter is to be relisted for a Directions Hearing to determine its future conduct.