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 tenancy dispute’, materially, ‘means any dispute concerning the liabilities or obligations …of a party or former party to a retail shop lease or former lease … 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’ (63(1)). A ‘retail shop lease’ is defined, materially, to mean ‘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’ (s 4).

6 In this case it is accepted that, by virtue of the agreement, the Council did grant a right of occupation of paved land owned by it for the purpose of using it to conduct a business that falls within the list of shop uses to which the RLA applies (see Schedule 1 to the RLA). The question therefore becomes in terms of the definition of ‘retail shop lease’ whether the land can be described as ‘premises’ within the meaning of the RLA. The Council contends that open space can not reasonably be interpreted as falling within the meaning of ‘premises’.

7 The RLA does not define the word ‘premises’. While it is a word that, in our opinion, has little currency in the ordinary language of the community, it is one that is used regularly in particular areas, such as the leasing of property and in licensing and regulatory schemes. As the term is not defined in the context of the RLA, it should be interpreted in a way that is consistent with its common usage in the context of commercial property leasing. In that regard any indications contained in the RLA as to the meaning which it is intended to bear should be taken into account. This kind of approach was taken by the High Court in Turner v York Motors (1951) 85 CLR 55.

8 In that case land had been let to tenants for business purposes (building caravans and truck bodies and parking goods). They expanded their activities onto neighbouring land also owned by the landlord. Dispute arose and they were given a notice to quit. The case concerned the lawfulness of the notice to quit, and involved an analysis of the position under the common law and the Conveyancing Act of New South Wales. One of the further issues was whether the tenants had the benefit of the War era legislation which conferred protections on occupants of ‘prescribed premises’ as well as other legislation relating to returned soldiers. It was accepted that the notice to quit did not comply with this legislation.

9 Two of the four judges examined the question of the scope of the term ‘premises’ – Dixon J and Williams J. They both accepted that the tenancy granted was one of land only and not land and buildings. They noted that the tenants had subsequently brought onto the land some structures to enable them to conduct their business – in the form of old caravans and an old bus, which they used as workshops.

10 Dixon J held that the term ‘premises’ referred in the context of this legislation to built structures, as did Williams J (though he dissented from the other three judges in relation to the outcome of the appeal, which was successful).

11 Dixon J acknowledged in his judgment that there could be circumstances in which ‘bare land’ might fall within the meaning of ‘premises’. He gave the example of a landlord giving permission to the tenant to build a permanent structure, which structure would become part of the land and pass to the ownership of the landlord on termination of the lease (at 75). In making this observation Dixon J also noted that ‘The word ‘premises’ is no doubt a vague one but in legislation of this sort [the protected persons legislation] there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact.’ Dixon J concluded at 75: ‘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 purpose of occupation as bare land, does not constitute premises.’

12 Williams J noted that in popular speech ‘premises’ was often used to refer to land only, but he was moved to adopt the interpretation that ‘premises’ in the context of this legislation meant buildings, having regard to rulings in other States on the same question which he considered would have been in the contemplation of the New South Wales Parliament when it later enacted the present legislation.

13 In addition to referring to the dicta of Dixon J, the Council, in its submissions to the Tribunal below, referred to various definitions found in legal and general dictionaries. They are noted at para [20] of the Tribunal’s reasons for decision. Most of the definitions equate the word ‘premises’ with building or some form of built structure. Only one of five sources relied upon refers to ‘premises’ as the land itself (the Macquarie Dictionary, 2nd ed). The Council submitted that, in interpreting the way in which the word ‘premises’ is used in the RLA, regard must be given to the subject-matter of the RLA. It contended that the subject matter was the regulation of the relationship between lessors and lessees in respect of ‘retail shops’ and in turn a ‘shop’ is itself a word that connotes a built structure. Two standard definitions (Oxford Dictionary, Macquarie Dictionary) define a ‘shop’ in that way: see para [22] of the reasons. The Council pointed to other provisions of the RLA which supported such an interpretation: see reasons at [23] and following.

14 The Council also referred to the general scheme of the legislation. The legislation seeks to regulate a variety of commercial aspects of the retail tenancy relationship. These aspects only make sense if the Parliament was proceeding on the assumption that it was regulating situations in which landlords had built premises on their land and let them for occupation. So for example the disclosure statement requirements call on the lessor to state what ‘finishes, fittings, fixtures and equipment’ the lessee is to pay for. The list of ‘outgoings’ potentially payable by the lessee sets out almost all of which could only relate to the occupation of a built structure (such matters as electricity, repairs and maintenance, cleaning, lifts and escalators). There are frequent references in the Act to the subject of a retail lease being a ‘retail shop’.

15 The conclusions of the Tribunal are set out at paras [57] and following, were:

‘57 While I agree with Mr Bellamy's argument [for the Council] 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 [for Mr Malouf] 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.’

16 The Council and Mr Malouf each presented written submissions, and made further oral submissions at the appeal hearing. The parties essentially reiterated their submissions to the Tribunal below. A decision from 1999 that was not before the Tribunal below was examined, being Conoid Pty Ltd v International Theme Park Pty Ltd [1999] NSWSC 1138 (Simos J).

17 This case dealt with the nature of the relationship between a theme park operator and two photographic businesses permitted to undertake activity within the park. The businesses initiated proceedings in the Supreme Court seeking to deal with a variety of issues, one of which was whether the relationship had given rise to a retail shop lease governed by the RLA. If the relationship was governed by the RLA the businesses obtained certain benefits and protections which were not available at common law.

18 The operator’s agreement with the businesses had been expressed as a ‘licence’ to take photographs of patrons. The agreement gave a ‘non-exclusive licence … to occupy … premises … to be set aside by [the operator]’. The operator had erected simple buildings in the vicinity of various mechanical rides; and it was from those structures that the photographic business could be conducted.

19 A critical issue was whether the agreement conferred a right to occupy ‘premises’ within the meaning of the Act. Simos J found that it did. His Honour said:

‘"Shop"

53 In my opinion, with the possible exception of the V.W. Kombi van, the premises in which the plaintiffs carry on their businesses are "shops" within the ordinary, natural meaning of that word, and there is nothing in the Act or in the legislative purpose underlying the Act, requiring the exclusion of that ordinary meaning. The word "shop" is defined in the Macquarie Dictionary (3 ed. - 1997), relevantly, as "a building where goods are sold retail" and, in the Concise Oxford Dictionary (8 ed. - 1990) relevantly, as "a building, room, etc. for the retail sale of goods or services (chemist's shop; betting-shop)." In my opinion, each of the concessions carried on by the plaintiffs involves the sale of goods and/or services by retail in premises which, in my opinion, with the possible exception referred to above, may properly be described as "buildings" albeit not substantial buildings, or " rooms" having regard to the consideration that the Macquarie Dictionary defines the word "building" as "a permanent fixed structure forming an enclosure and providing protection from the elements, etc. (e.g. a house, school, factory, or stable)." The Concise Oxford Dictionary defines the word "building" as "a substantial structure with a roof and walls, as a shed, house, department store, etc." In my opinion, again with the possible exception mentioned, all of the relevant premises are, relevantly, permanent, fixed structures forming enclosures with a roof and walls providing protection from the elements and are thus "buildings", and are also "rooms".’

20 The Council contended that Simos J’s analysis was consistent with its submissions. The Council noted that Simos J had adopted the ordinary meaning of ‘premises’ and applied it properly to the facts before him. The Council contended that equally it followed that he would have found otherwise had he been dealing with a situation where open land was being occupied without any built structure.

21 Simos J then dealt with the one structure from which the business was permitted to be conducted that might give rise to a different conclusion – a painted-up VW Kombi Van. It was fixed to the ground in a permanent way and was not mobile. Simos J stated at [58-59]:

‘58 The possible exception to which I have referred above in relation to whether those premises may properly be described as " buildings" are the "premises" from which the Beastie Ride photo concession is operated, being the converted V.W. Kombi van called The Scooby Doo Mystery Machine… . In my opinion, that van, which is, to all intents and purposes, permanently located in its present position resting on four metal stands next to each wheel and surrounded by a garden bed, and having the other features described above, may properly be described as a "building" for the purposes of the definition of "shop" contained in the Macquarie Dictionary and the Concise Oxford Dictionary.

59 The van is plainly used as a permanent fixed structure or room with roof and walls providing protection from the elements in which photographs are sold by retail. In those circumstances, in my opinion, it is appropriate for present purposes, that is, for the purposes of the Act, to regard the van as a "shop". In my opinion the legislative purpose underlying the Act is, relevantly, in this context, that the Act should cover all enclosed places (cf. stalls) in which goods and/or services are sold by retail, and which are the subject of leases or licences, regardless of whether those places may be strictly called "buildings" or not. This underlying legislative purpose is, in my opinion, manifested, inter alia, in the definition of "retail shop" in section 3 of the Act which incorporates Schedule 1 to the Act from which definition and Schedule it is plain that the legislature's principal relevant focus of attention in this connection was the (retail) business being carried on, and not the particular nature of the premises in which it was being carried on. Accordingly, I find that the V.W. Kombi van used to operate the Beastie Ride Photo concession is a "shop" within the meaning of the definition of "retail shop" contained in section 3 of the Act.’

22 Mr Bellamy for the Council drew support for his case from one sentence in [59]: ‘In my opinion the legislative purpose underlying the Act is, relevantly, in this context, that the Act should cover all enclosed places (cf. stalls) in which goods and/or services are sold by retail, and which are the subject of leases or licences, regardless of whether those places may be strictly called "buildings" or not.’ While Mr Newport for Mr Malouf drew support for his case from part of another sentence in [59]: ‘[I]t is plain that the legislature's principal relevant focus of attention in this connection was the (retail) business being carried on, and not the particular nature of the premises in which it was being carried on’.

23 The question raised by this case is clearly one of general importance. There are many examples today in New South Wales where councils have permitted the occupation of public spaces for use as outdoor eating areas in connection with a café or restaurant. The spaces do not normally have any built elements supplied by the council; or if they do, they may take the form, as in for example malls, of fixed canopies to protect against sun and rain. In this instance there were no built elements supplied by the Council. In that way the case is similar to Turner and dissimilar to Conoid.

24 While it is probably still the case, as Williams J observed in Turner, that in popular speech the word ‘premises’ is often used in an undifferentiated way to cover land alone or land and buildings, this is not so, we consider, in contexts such as the present one, that of commercial leasing. The word is routinely used in juxtaposition to the land upon which the premises are said to be ‘situated’. In this usage, premises refers to the building which constitutes the improvement to the land. It is the building that makes the land commercially attractive to a potential business tenant. That is, of course, not always true. There are some situations where it is enough for a business to be successful that it is located on open land in a prime location. Street vendors, hawkers, ice-cream vans operate on that principle.

25 A search of the New South Wales legislation database reveals that there are numerous New South Wales statutes where the term ‘premises’ has been defined. That it has not occurred in the case of the RLA lends strength to the proposition that the Parliament had in mind that it bore its usual meaning as found in the context of commercial leasing. Many of the statutory definitions of ‘premises’ do cover open land. For example, the principal Act governing the operation of councils, the Local Government Act 1993, takes that approach. The definition of ‘premises’ for its purposes is:

‘ "premises" means any of the following:
(a) a building of any description or any part of it and the appurtenances to it,
(b) land, whether built on or not,
(c) a shed or other structure,
(d) a tent,
(e) a swimming pool,
(f) a ship or vessel of any description (including a houseboat),
(g) a van.’

26 It will be seen that vacant land is covered, as are mobile structures such as ships and vans.

27 The various court interpretations of the word ‘premises’, as recorded in Stroud’s Judicial Dictionary of Words and Phrases (vol 4, 1986), given in a variety of legislative and contractual contexts, all clearly include a building and its appurtenances (including for example surrounding gardens) within the meaning of ‘premises’. An ‘appurtenance’ refers in this context to perimeter land to the building, in circumstances where the building and the adjacent land are both the subject of the circumstances in issue, typically a letting.

28 Beyond that point there is no unanimity of view as to what is covered by the term. Different conclusions have been reached in different contexts. There are instances confined to particular statutory or contractual contexts where ships, vessels and vans, and open land have been treated as ‘premises’. In our view, items (b) to (g) of the above definition from the Local Government Act all seek to address situations where there is, at least, doubt as to whether the ordinary meaning of ‘premises’ would extend to the spaces and structures listed.

29 The Queensland retail leases law Retail Shop Leases Act 1994 (Qld), in contradistinction to other laws examined by the Appeal Panel (New South Wales’, Victoria’s and South Australia’s) does seek to define ‘premises’ in the context of its definition of ‘retail shop premises’, as follows (s 5):

‘"retail shop lease" means a lease of a retail shop, other than a lease of--
(a) a retail shop with a floor area of more than 1 000 m2 by a public corporation or a public corporation's subsidiary; or
(b) premises in a theme or amusement park; or
(c) premises at a flea market, including an arts and crafts market; or
(d) a temporary retail stall at--
(i) an agricultural or trade show; or
(ii) a carnival, festival or cultural event; or
(e) another type of premises prescribed by regulation.’

30 This definition appears to rest on the assumption that ‘premises’ involve something more than mere land or space. If open unimproved land was intended to be covered that would have been stated. All of the specific contexts referred to in (a), (b), (c) and (d) involve the built environment with the exceptions reflected in (b), (c) and (d) seeking to leave outside the scope of regulation activities which are likely to be of a small scale or relatively occasional character.

31 In looking at the present question, we do not agree with the approach adopted by the Tribunal, which was to separate the meaning of ‘shop’ from its consideration of the meaning of ‘premises’. What the RLA is dealing with is ‘retail shop’ premises. We agree with the submissions of the Council that the meaning of ‘shop’ must condition the approach to be taken to the meaning of ‘premises’. This is the approach adopted by Simos J in Conoid, with which we agree.

32 Under the RLA, the definition of a ‘retail shop’ has two spheres of operation, the first being retail shopping centres, the second shops not in retail shopping centres. The present case is in the second category. As to the second category the definition provides that a ‘retail shop means premises that … are used wholly or predominantly for the carrying on of one or more businesses specified in Schedule 1.’ One of those businesses is ‘restaurants, cafeterias, coffee lounges and other eating places’. Schedule 1 includes many businesses that could only practically be carried on in built structures of some permanence. But the list includes businesses where that is less true, for example, ‘gift shops’, ‘flower shops’ and ‘fruit and vegetable shops’. These are businesses of a kind that can readily be conducted in an open-air environment.

33 Equally, we accept that it is not unusual for the ‘premises’ the subject of a retail lease to include a mix of built elements and open space. The garden restaurant is one example. To take another example from the list in the Schedule – ‘pools and spas shops’, such a shop may have a significant adjacent open area for the display of products. It would be a strange outcome if ‘premises’ for the purposes of the RLA were so strictly construed as to exclude from the scope of the Act’s protection open space elements of this kind associated with the built element. Dixon J’s observations in Turner dealt with that possibility, as do the standard definitions which cover both the building and its ‘appurtenances’.

34 In this case the built element (the restaurant) and the open space element have different owners or controllers. State Government and Council policies now offer restaurateurs the opportunity to extend the seating capacity of their restaurants by placing tables and chairs in the outdoor areas controlled by the Council.

35 Councils have traditionally permitted under licence itinerant street trade, ranging from hawkers and buskers to market days run from stalls erected by the trader. The difference in the present type of case is that there is permanence for a substantial period (2 years, plus an option for one year) given to the arrangement, and the occupant is given a form of exclusive control of the space subject to various terms and conditions as to signage, general appearance, perimeter markers and the like.

36 It is in our view straining the meaning of the word ‘premises’ as used in the RLA and in commercial leasing generally to treat it as in effect a synonym for ‘bare land’ (to use the term employed by Dixon J in Turner).

37 As already noted, public spaces will often have intrinsic attractiveness as sites for retail trade; for example, beaches, beach foreshores, parks and pedestrian malls in town centres (such as the famous precinct under notice in this case).

38 We were referred to the Second Reading Speech introducing the important reforms effected by the RLA. Our conclusion, we consider, is consistent with that material. We are satisfied that the Parliament when enacting the RLA had in mind the regulation of the built environment of retail trading, as distinct from other environments in which retail trading is carried on. The second reading speech (Legislative Assembly, 20 April 1994, 1547, Mr Chappell, Minister for Small Business) makes repeated reference to the need for fairer dealings as between landlords and tenants in ‘shops’ and ‘shopping centres’. The Minister refutes demands that the legislation be restricted to major shopping centres; and endorses the need for the protections given by the new law to cover problems which are ‘widespread’ and adds ‘whether the premises be shops, strip shops or metropolitan shopping centres’ (at 1549). This statement points towards the Parliament having in mind the ordinary meaning of ‘premises’ as referring to built structures (and their appurtenances).

39 We acknowledge that it is possible that the problems that occur in the context of retail shop leases could also occur in leases allowing for retail activity in open, public spaces. But it is difficult to imagine that they could be of the same complexity in respect of the economic relationship. While the level of use of open, public space for retail trade may have increased since 1994 (especially in the way this case illustrates, with the emergence of outdoor eating areas seeking to imitate Paris), such activities were known to be allowed prior to 1994 (ice cream stands and vans at popular tourist spots being an obvious example).

40 In our view there is nothing in the Parliamentary material or in the terms of the legislation to suggest that the Parliament’s reference to ‘premises’ was intended to embrace any more than circumstances where landlords had authorised the occupation of a built structure (and its appurtenances) for use for retail trade.

41 There could be circumstances, we recognise, where the built element and the adjacent open space element are owned by a council. In these circumstances, a construction of the meaning of ‘premises’ should be adopted, as we have already indicated, which ensures that separate agreements are not effected with a view ousting the application of the RLA in respect of the outdoor area.

42 But the situation, as we see it, is different where there is no real connection between the ownership and control of the first site and the second site. Here a restaurateur who, as it happens, owns the first site, has taken the opportunity to increase the trading capacity of the restaurant by seeking to occupy adjacent areas. The relationship he now has with the Council in relation to the occupied land may amount at common law to a leasehold relationship (as distinct from a mere licence). We are not required to answer that question.

43 But the owner of the land, in this instance the Council, did not as part of that arrangement offer the tenant any opportunity to occupy any structure that could reasonably be referred to as ‘premises’.

44 It may well be that the Government and Parliament should give consideration to whether the separate letting of outdoor space on a permanent basis for retail trading should be brought within the scope of the RLA.

45 There was a further issue considered by the Tribunal as to whether s 125 of the Roads Act 1993 displaced the RLA.

46 The Council’s power to approve the use of Council land for restaurant purposes is provided by that provision. The Tribunal rejected a submission from the Council that exercises of power pursuant to the Roads Act were unaffected by the RLA. In light of our ruling on the principal issue, it is not necessary for us to reconsider the Tribunal’s ruling on that point.

47 It follows from our reasons that Mr Malouf’s claim should be declined for want of jurisdiction.

Orders

1. Appeal upheld.

2. Respondent’s retail tenancy claim dismissed for want of jurisdiction.