Pyrmont Point Pty Ltd v Westacott - [2016] NSWCA 33

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33
Hearing dates: 1 February 2016
Date of orders: 09 March 2016
Decision date: 09 March 2016
Before: Ward JA at [1];
Leeming JA at [50];
Emmett AJA at [92]
Decision:
1. Leave to appeal is granted and to the extent necessary leave is given to extend the time for the filing of the application for leave to appeal to the date on which it was filed.
2. Appeal dismissed with costs.

Catchwords: STATUTORY INTERPRETATION – Retail Leases Act 1994 (NSW), s 6(1)(b) – meaning of “leases for a term of 25 years or more” where applicant’s registered lease had resulted from the exercise of an option contained in an earlier lease
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)
Interpretation Act 1987 (NSW), ss 7, 8(b), 33, 34
Real Property Act 1900 (NSW), s 42(1)(d)
Real Property Act 1886 (SA), ss 153, 154
Retail Leases Act 1994 (NSW), ss 3, 4, 5, 6, 6A, 7, 8, 11, 16(1), 31, 32, 44(5), 80
Supreme Court Act 1970 (NSW), ss 75A, 101(2)(e)
Cases Cited: Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Gnych v Polish Club Ltd [2015] HCA 23; 89 ALJR 658
Mercantile Credits Ltd v The Shell Company of Australia [1976] HCA 9, (1976) 136 CLR 326
Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376
Pyrmont Point Pty Ltd (ACN 145 199 784) trading as “Red Bottle” v Albert Victor Westacott [2014] NSWCATCD 40
Pyrmont Point Pty Ltd v Albert Victor Westacott [2014] NSWCATCD 42
Pyrmont Point Pty Ltd v Westacott [2014] NSWCATAP 106
Pyrmont Point Pty Ltd v Westacott [2015] NSWSC 783
Radaich v Smith (1959) 101 CLR 209
Texts Cited: A Bradbrook, C Croft and R Hay, Commercial Tenancy Law (3rd ed, 2009, LexisNexis Butterworths)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 April 1994
Category: Principal judgment
Parties: Pyrmont Point Pty Limited (Applicant)
Albert Victor Westacott (Respondent)
Representation:
Counsel:
DH Murr SC (Applicant)
DA Smallbone (Respondent)
Solicitors:
JDK Legal (Applicant)
RJI Legal (Respondent)

File Number(s): 2015/00194997
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 783

Date of Decision:

18 June 2015

Before:

Wilson J

File Number(s):

2014/316028

HEADNOTE

[This Headnote is not to be read as part of the judgment]

In 2010 the applicant Pyrmont Point Pty Ltd (Pyrmont) acquired, by way of assignment, a lease of premises of which the respondent, Mr Westacott, is lessor. That lease had resulted from the exercise of an option contained in an earlier lease (the original lease), which was for a term of 5 years with 4 options to renew of 5 years each.

On application…

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: [2016] NSWCA 33
Decision Date: 09 March 2016

CaseChat Overview and Summary

Pyrmont Point Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge concerning the application of the *Retail Leases Act 1994* (NSW). The dispute arose from the applicant's registered lease, which had been granted following the exercise of an option contained in an earlier lease. Westacott (the respondent) was the lessor.

The central legal issue before the Court of Appeal was the interpretation of section 6(1)(b) of the *Retail Leases Act 1994* (NSW), which exempts from the Act's provisions leases for a term of 25 years or more. Specifically, the court had to determine whether the term of the applicant's registered lease, which resulted from the exercise of an option in a prior lease, should be aggregated with the term of the prior lease to meet the 25-year threshold.

The Court of Appeal reasoned that the phrase "leases for a term of 25 years or more" in section 6(1)(b) referred to the term of the lease currently in effect, not the aggregate term of successive leases or leases granted pursuant to options. The court held that the registered lease was a new lease, distinct from the prior lease, and its term alone did not satisfy the 25-year requirement. Therefore, the Act applied to the registered lease.

Leave to appeal was granted, and the appeal was dismissed with costs.

Orders

Orders of the court

1. Leave to appeal is granted and to the extent necessary leave is given to extend the time for the filing of the application for leave to appeal to the date on which it was filed.

2. Appeal dismissed with costs.

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.

Medium Neutral Citation:	Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33
Hearing dates:	1 February 2016
Date of orders:	09 March 2016
Decision date:	09 March 2016
Before:	Ward JA at [1]; Leeming JA at [50]; Emmett AJA at [92]
Decision:	1. Leave to appeal is granted and to the extent necessary leave is given to extend the time for the filing of the application for leave to appeal to the date on which it was filed. 2. Appeal dismissed with costs.
Catchwords:	STATUTORY INTERPRETATION – Retail Leases Act 1994 (NSW), s 6(1)(b) – meaning of “leases for a term of 25 years or more” where applicant’s registered lease had resulted from the exercise of an option contained in an earlier lease
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) Interpretation Act 1987 (NSW), ss 7, 8(b), 33, 34 Real Property Act 1900 (NSW), s 42(1)(d) Real Property Act 1886 (SA), ss 153, 154 Retail Leases Act 1994 (NSW), ss 3, 4, 5, 6, 6A, 7, 8, 11, 16(1), 31, 32, 44(5), 80 Supreme Court Act 1970 (NSW), ss 75A, 101(2)(e)
Cases Cited:	Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gnych v Polish Club Ltd [2015] HCA 23; 89 ALJR 658 Mercantile Credits Ltd v The Shell Company of Australia [1976] HCA 9, (1976) 136 CLR 326 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 Pyrmont Point Pty Ltd (ACN 145 199 784) trading as “Red Bottle” v Albert Victor Westacott [2014] NSWCATCD 40 Pyrmont Point Pty Ltd v Albert Victor Westacott [2014] NSWCATCD 42 Pyrmont Point Pty Ltd v Westacott [2014] NSWCATAP 106 Pyrmont Point Pty Ltd v Westacott [2015] NSWSC 783 Radaich v Smith (1959) 101 CLR 209
Texts Cited:	A Bradbrook, C Croft and R Hay, Commercial Tenancy Law (3rd ed, 2009, LexisNexis Butterworths) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 April 1994
Category:	Principal judgment
Parties:	Pyrmont Point Pty Limited (Applicant) Albert Victor Westacott (Respondent)
Representation:	Counsel: DH Murr SC (Applicant) DA Smallbone (Respondent) Solicitors: JDK Legal (Applicant) RJI Legal (Respondent)
File Number(s):	2015/00194997
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 783 Date of Decision: 18 June 2015 Before: Wilson J File Number(s): 2014/316028