Manly Council v Malouf - [2003] NSWADTAP 12

Appeal Panel - Internal

CITATION: Manly Council -v- Malouf [2003] NSWADTAP 12

PARTIES: APPELLANT
Manly Council
RESPONDENT
Michael Malouf

FILE NUMBER: 029048

HEARING DATES: 07/03/03

SUBMISSIONS CLOSED: 03/07/2003

DATE OF DECISION:
04/16/2003

DECISION UNDER APPEAL:
Malouf -v- Manly Council (no 2) [2002] NSWADT 2002

BEFORE: O'Connor K - DCJ (President); Hole M - Judicial Member; Weule B - Member

CATCHWORDS: jurisdiction - statutory interpretation

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 015065

DATE OF DECISION UNDER APPEAL: 10/14/2002

LEGISLATION CITED: Local Government Act 1993
Retail Leases Act 1994
Retail Leases Act 1994 (Qlds)
Roads Act 1993

CASES CITED: Malouf v Manly Council (No 2) [2002] NSWADT 200
Turner v York Motors (1951) 85 CLR 55
Botts -v- Grimme [2002] NSWADTAP 15
Conoid Pty Ltd v International Theme Park Pty Ltd [1999] NSWSC 1138

REPRESENTATION: APPELLANT
R Bellamy, barrister
RESPONDENT
G Newport, barrister

ORDERS: 1. Appeal upheld; 2. Respondent's retail tenancy claim dismissed for want of jurisdiction.

1 This case raises, in essence, the important issue of whether the statutory protections given by the Retail Leases Act 1994 (the RLA) embrace retail trading activities undertaken at any kind of place or space or are confined to retail trading undertaken at places that can reasonably be described as ‘shops’.

2 The Manly Council (the Council) permitted a restaurant proprietor (Mr Malouf) to occupy areas outside his shop building for use as an outdoor eating area. The restaurant business was one of several activities carried on at the shop, known as ‘Fusion Point’ and situated at Shop L, 1-21 Wentworth Street, Manly near The Corso. Mr Malouf has described the business as a ‘lifestyle shop’ consisting of photo development, aromatherapy, skin care, coffee with a kitchen and licensed restaurant. He owns the shop freehold outright. The Council permission allowed Mr Malouf to place 14 tables and 44 chairs in two designated areas on The Corso in the vicinity of his shop, initially for a two year period, in exchange for payment of a fee.

3 There has been a dispute between Mr Malouf and the Council over whether he has complied with the terms of the agreement, in particular in connection with the erection by Mr Malouf of retractable awnings and side curtains, and related structures. Mr Malouf has responded by lodging a retail tenancy claim in the Tribunal seeking to invoke its jurisdiction under the RLA, claiming various breaches of the RLA by the Council. The Council denies that it is bound by the RLA, and objects to the jurisdiction of the Tribunal.

4 The Retail Leases Division of the Tribunal (the Tribunal) has held that the agreement is subject to the Act, and the claim is competent: see decision in Malouf v Manly Council (No 2) [2002] NSWADT 200 (14 October 2002). The Council now appeals.

5 A ‘retail tenancy claim’ for the purposes of the RLA is, materially, a claim in connection with a liability or obligation with which a retail tenancy is concerned’ (s 70(a)). 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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Details

Case: [2003] NSWADTAP 12
Decision Date: 04/16/2003

CaseChat Overview and Summary

In the matter of Manly Council versus Malouf, the primary dispute involved a claim made by the respondent, Malouf, for a retail tenancy. The Council sought to dismiss this claim on the grounds that it lacked the necessary jurisdiction to hear the matter. The case was brought before the court of appeal, which was tasked with determining whether the lower court's decision was correct.

The central legal issue the court had to decide was whether it had the jurisdiction to hear Malouf's claim for a retail tenancy. This involved interpreting the relevant statutory provisions to ascertain the extent of the court's authority in such matters. The court needed to determine if the statutory framework provided it with the necessary jurisdiction to entertain claims related to retail tenancies.

The court found that the statutory provisions did not grant it the jurisdiction to hear Malouf's claim for a retail tenancy. It concluded that the matter fell outside the scope of its authority as defined by the relevant legislation. Consequently, the appeal was upheld, and Malouf's claim was dismissed for want of jurisdiction. The court's reasoning was based on a careful analysis of the statutory language and the scope of the court's powers under the applicable laws.

Orders

Orders of the court

1. Appeal upheld; 2. Respondent's retail tenancy claim dismissed for want of jurisdiction.

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:	Manly Council -v- Malouf [2003] NSWADTAP 12
PARTIES:	APPELLANT Manly Council RESPONDENT Michael Malouf
FILE NUMBER:	029048
HEARING DATES:	07/03/03
SUBMISSIONS CLOSED:	03/07/2003
DATE OF DECISION:	04/16/2003
DECISION UNDER APPEAL:	Malouf -v- Manly Council (no 2) [2002] NSWADT 2002
BEFORE:	O'Connor K - DCJ (President); Hole M - Judicial Member; Weule B - Member
CATCHWORDS:	jurisdiction - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	015065
DATE OF DECISION UNDER APPEAL:	10/14/2002
LEGISLATION CITED:	Local Government Act 1993 Retail Leases Act 1994 Retail Leases Act 1994 (Qlds) Roads Act 1993
CASES CITED:	Malouf v Manly Council (No 2) [2002] NSWADT 200 Turner v York Motors (1951) 85 CLR 55 Botts -v- Grimme [2002] NSWADTAP 15 Conoid Pty Ltd v International Theme Park Pty Ltd [1999] NSWSC 1138
REPRESENTATION:	APPELLANT R Bellamy, barrister RESPONDENT G Newport, barrister
ORDERS:	1. Appeal upheld; 2. Respondent's retail tenancy claim dismissed for want of jurisdiction.