Manly Council v Malouf [2004] NSWCA 299 revised - 08/12/2004
HEARING DATE(S):
4 August 2004
JUDGMENT DATE:
2 September 2004
JUDGMENT OF:
Mason P at 1; Handley JA at 2; Tobias JA at 26
DECISION:
(a) Appeal allowed; (b) Orders made by Shaw J on 6 February 2004 be set aside; (c) Appeal to the Supreme Court from the decision of the Administrative Decisions Tribunal Appeal Panel dated 14 October 2002 be dismissed; (d) Order that the respondent pay the costs of the proceedings before the primary judge and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified
CATCHWORDS:
LEASES AND TENANCIES - Premises - Outdoor area - Licensed under specific deed - Whether part of retail shop lease - Approval under s 125 Roads Act - Whether subject to Retail Leases Act - s 125 Roads Act - STATUTES - Interpretation - Generalia specialibus non derogrant - s 125 Roads Act 1993 - Retail Leases Act
A: B Coles QC / R Bellamy R: J Gleeson QC / G Newport / D B Beukes
SOLICITORS:
A: Abbott Tout, Sydney R: Doyles Construction Lawyers, Sydney
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
SC 30045/02
LOWER COURT JUDICIAL OFFICER :
Shaw J
CA 40150/04 SC 30045/02
MASON P HANDLEY JA TOBIAS JA
Thursday 2 September 2004
MANLY COUNCIL v MICHAEL MALOUF t/as FUSION POINT
Mr Malouf, a restaurateur, attained a licence from the Council to occupy four areas of footpath for outdoor dining. Two of these areas were on the footway of a public road and, in respect of these, the licence was granted in conjunction with a two year approval under s 125 Roads Act: a section specifically dealing with approvals to use footways for restaurant purposes. A dispute subsequently arose which, on appeal distilled to two issues: firstly, whether the deed, made pursuant to an approval under the Roads Act, was itself subject to the Retail Leases Act; and secondly, whether an outdoor footway, the subject of its own licence but used in conjunction with a retail…
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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AGLC
Manly Council v Malouf [2004] NSWCA 299
Case
[2004] NSWCA 299
Decision Date
CaseChat Overview and Summary
Manly Council appealed to the Court of Appeal of New South Wales against a decision of Shaw J, which had determined that a licence granted by the Council to Mr Malouf for the use of an outdoor area adjacent to his retail premises was subject to the *Retail Leases Act 1994* (NSW). The dispute concerned whether the outdoor area, licensed under a specific deed, constituted part of the "retail shop" for the purposes of the *Retail Leases Act*, or if its use was governed solely by the provisions of s 125 of the *Roads Act 1993* (NSW).
The central legal issue before the Court of Appeal was to determine the proper interpretation of s 125 of the *Roads Act* and its relationship with the *Retail Leases Act*. Specifically, the court had to consider whether the grant of a licence under s 125 of the *Roads Act* for the use of a public road, for purposes ancillary to a retail business, could be considered a "retail shop lease" within the meaning of the *Retail Leases Act*. This involved an examination of the principle of statutory interpretation that general provisions do not derogate from specific provisions (*generalia specialibus non derogant*).
The Court of Appeal reasoned that s 125 of the *Roads Act* specifically empowered local councils to grant licences for the use of roads for purposes such as outdoor dining or display areas, and that such licences were distinct from leases of premises. The court held that the *Roads Act* was the more specific legislation governing the use of road space, and that the *Retail Leases Act*, being a general statute concerning retail tenancies, did not override the specific provisions of the *Roads Act* in this context. Therefore, the licence granted under s 125 of the *Roads Act* was not a "retail shop lease" for the purposes of the *Retail Leases Act*.
Consequently, the Court of Appeal allowed the appeal, set aside the orders made by Shaw J, and dismissed Mr Malouf's appeal to the Supreme Court from the Administrative Decisions Tribunal Appeal Panel. The court ordered that Mr Malouf pay the costs of the proceedings before the primary judge and the appeal, with a certificate for the appeal costs under the *Suitor's Fund Act 1951* if he qualified.
Orders
Orders of the court
(a) Appeal allowed; (b) Orders made by Shaw J on 6 February 2004 be set aside; (c) Appeal to the Supreme Court from the decision of the Administrative Decisions Tribunal Appeal Panel dated 14 October 2002 be dismissed; (d) Order that the respondent pay the costs of the proceedings before the primary judge and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified