Sorbara v DJ & AJ McCallum Pty Ltd - [1998] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 4062 of 1997

MICHELE SORBARA, FRANCESCA SORBARA,
JOSEPH SORBARA AND GAIL ISABEL
SORBARA

Appellants

v
D.J. AND A.J. MCCALLUM PTY. LTD.

Respondent

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JUDGES: ORMISTON, PHILLIPS and KENNY, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 17 August 1998
DATE OF JUDGMENT: 14 October 1998
CASE MAY BE CITED AS: Sorbara v. D.J. and A.J. McCallum Pty. Ltd.
MEDIA NEUTRAL CITATION:

[1998] VSCA 71 First Revision 13 August 1999

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LANDLORD AND TENANT - Retail tenancies - Motel premises - Meaning of "retail premises" - Meaning of "floor area" - Retail Tenancies Act 1986 (No. 106), ss.3, 21.

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APPEARANCES: Counsel Solicitors
For the Appellants Mr P.G. Nash, Q.C. and Aitken Walker & Strachan
Mr M.A. Strang (as town agents for Basile
Pino & Co.)
For the Respondent Mr R.R. Boaden Rigby Cooke

ORMISTON, J. A.:

The definition of "retail premises" and the exclusion from that definition of premises with a "floor area" exceeding 1,000 square metres in s.3 of the recently repealed Retail Tenancies Act 1986 ("the Act") has caused much difficulty. It caused difficulty because, although it was clear that the various protections afforded to tenants under the Act were primarily intended to benefit those engaged in small businesses, the form of the exception has had varying effects for that purpose, depending on the nature of the businesses carried on. Attempts to give effect to Parliament's intentions have led to a series of inconsistent, or partly inconsistent, decisions by judges of the Supreme Court, each valiantly attempting to create order out of chaos by reading into the words used some meaning which would give consistent effect to the legislature's intentions, when applied to a variety of situations. This is the first occasion the definition and the exception have been considered by an appellate court and the solution to the matters raised has caused me much concern, for seemingly any answer given might prove of general application, inasmuch as we were assured in argument that the definition and the exception remain the same under the Retail Tenancies Reform Act 1998 ("the new Act"). However, although that assurance was literally correct, it omitted reference to s.s.(5) of s.3 of the new Act which states that "in determining the floor area of premises for the purposes" of the new Act, regard should be had to "the guidelines for the measurement of lettable area" to be notified (only) in the Government Gazette by the Minister for Small Business. Anything, therefore, we say as to the meaning of the definition and exception in the former Act must be treated with the greatest care for the purposes of the new Act in that what is said must be tempered by a realisation that, notwithstanding continuing complaints as to the effectiveness of the definition under the former Act, Parliament has now qualified those definitions merely by making an indirect reference to "lettable area", at least for certain purposes in determining the floor area of…

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: [1998] VSCA 71
Decision Date: 14 October 1998

CaseChat Overview and Summary

Sorbara was a tenant of a motel operated by the McCallums, who were the defendants. Sorbara sought a declaration that the premises were retail premises and that the defendants had breached the Act by failing to provide him with a lease. The matter was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the motel premises constituted "retail premises" and what constituted the "floor area" of the premises under the Retail Tenancies Act 1986.

The court considered the definition of "retail premises" in the Act, which includes premises used for the sale of goods by retail. The court found that the motel premises were not used for the sale of goods by retail, but rather for the provision of accommodation services. The court also considered the meaning of "floor area" in the context of the Act, and found that it referred to the total area of the premises available for the use of the tenant. The court concluded that the defendants had not breached the Act by failing to provide Sorbara with a lease, as the motel premises did not constitute retail premises within the meaning of the Act.

The court further found that the defendants had not acted in a manner that was oppressive, harsh or unreasonably discriminatory, and that the termination of Sorbara's tenancy was valid. The court dismissed Sorbara's claim for a declaration and any other relief sought. The defendants were awarded costs of the proceedings.

Orders