Prasad v Fairfield City Council

CITATION:	Prasad & Anor -v- Fairfield City Council [2000] NSWADT 164
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Daniel Prasad Stephen Walker RESPONDENT Fairfield City Council
FILE NUMBER:	005020
HEARING DATES:	07/07/2000
SUBMISSIONS CLOSED:	07/07/2000
DATE OF DECISION:	07/07/2000
BEFORE:	Davidson R - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary issues as to jurisdiction
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:
REPRESENTATION:	APPLICANTS S Davis, barrister RESPONDENT A Macpherson, solicitor
ORDERS:	1. Objections to jurisdiction overruled; 2. Matter to proceed to hearing.

1 This is an application under the Retail Leases Act 1994. The application is by Daniel Prasad and Steven Walker as lessees against the Council of the City of Fairfield as Lessor. Mr Prasad and Mr Walker are the lessees of shop 4 in the Abbotsbury Neighbourhood Shopping Centre at 60-68 Stockdale Centre, Abbotsbury. That centre is a complex of shops comprising five shops altogether. It is frequently referred to in the evidence not only as the Stockdale Neighbourhood Shopping Centre but the Neighbourhood Crescent Shopping Centre and other descriptions.

2 In any event it is a complex of shops of which the Council of the City of Fairfield is the lessor and leases shops in that complex to various retailers carrying on various businesses. The applicants carry on the business of selling food for take away and for eating upon the premises and have six tables with chairs inside their shop and two tables outside their shop, that is shop 4. The applicants' food comprises essentially pizzas, roasted chickens, hamburgers, fish and chips, pasta, salads, sandwiches and items which go with the sale of those foods or are sold independently of those foods such as cool drinks and cappuccinos. The applicants' complain that the council is about to lease next door to shop 4, shop 5, for a pizza business. That business has been described as a Wood Fire Pizza business. The applicants have a significant pizza business and a sign above the premises in which they conduct their business reads Abbotsbury Food Gourmet Pizza. The applicants also, in addition to shop 5, allege that the council have exceeded the permitted use provision in its lease to the tenant of shop 1. That provision is as follows:

Permitted use: supermarket including delicatessen, video rental, fruit and vegetables sales, sales of newspapers, magazines and periodicals, mail point activities as authorised by Australia Post including selling stamps, lottery office and activities ancillary thereto.

3 The way in which the applicants allege that the council have permitted that provision to be exceeded and in fact is exceeded by the tenant is by what the applicants describe as a quasi restaurant as part of the business in shop 1, that is, so far as what that term means a sale of poultry cooked upon the premises and the provision of cappuccino coffee made upon the premises. It is unclear just what happens to those items but the items are consumed either off the premises or both off the premises and…