Sydney Markets Ltd v William Wilson

[2012] HCASL 155

SYDNEY MARKETS LTD

v

WILLIAM WILSON

[2012] HCASL 155
S272/2011

1. The applicant, Sydney Markets, conducts a market known as Paddy's Market at Haymarket, Sydney.  The respondent, Mr Wilson, occupies three stands at Paddy's Market from which he sells gifts and stationery under an occupancy agreement with Sydney Markets.  In September 2009 Mr Wilson commenced proceedings in the Administrative Decisions Tribunal of New South Wales ("the ADT") seeking certain declarations respecting Sydney Markets' proposal to extend trading hours at Paddy's Market to include Wednesday trading.  The ADT's jurisdiction to entertain Mr Wilson's claim depended upon it being a "retail tenancy claim" under the Retail Leases Act 1994 (NSW) ("the Act")[1].  Such a claim may be lodged by a party to a "retail shop lease"[2]. The member of the ADT who determined the claim and the ADT's Appeal Panel held that Mr Wilson's occupancy agreement was a retail shop lease under the Act.

   [1]The Act, ss 70, 72.

   [2]The Act, s 71.

2. Sydney Markets appealed to the New South Wales Court of Appeal contending that the occupancy agreement was not a retail shop lease.  Its argument turned on the meaning of the word "premises" in the definition of "retail shop lease" or "lease"[3].  It submitted that the agreement did not confer a right to occupy "premises", as distinct from a right to occupy an area of floor space within the building that houses Paddy's Market.  Mr Wilson filed a submitting appearance in the Court of Appeal. 

   [3]The Act, s 3 defines "retail shop lease" or "lease" to mean, relevantly, "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".

3. The Act defines "retail shop" to mean, relevantly, premises that are used, for the carrying on of one or more businesses that are prescribed for the purposes of the definition[4].  "Gift shops" and "stationery shops" are prescribed businesses for the purposes of the definition[5].  Hodgson JA, with whose reasons Tobias AJA agreed, was not persuaded that the Appeal Panel erred in law in applying the ordinary meaning of the words "premises", "gift shops" and "stationery shops" and in concluding that the erection of display cases, counters and signage made the space occupied by Mr Wilson indistinguishable from a retail shop as that expression is commonly understood.  His Honour considered that the finding that the area licensed to Mr Wilson within Paddy's Market constituted "premises" was not inconsistent with the decision in Manly Council v Malouf[6].  Basten JA also distinguished Malouf. His Honour considered that the word "premises" should not be given a restrictive meaning: to the extent that a "retail shop lease" requires the occupation of "premises" under the Act, an area of land within a building that is devoted to retail selling is capable of satisfying that requirement.

   [4]The Act, s 3, definition of "retail shop".

   [5]The Act, cl 17 of Sched 3 and Sched 1.

   [6](2004) 61 NSWLR 394.

4. Sydney Markets seeks special leave to appeal. Mr Wilson has again filed a submitting appearance. The principal special leave question asks whether open floor space, described as a "Stand", at Paddy's Market that is the subject of an occupancy agreement is a "retail shop lease or lease" within the meaning of the Act. The question is suggested to have some wider significance by reason of the use of the undefined word "premises" in retail lease legislation in other Australian jurisdictions. The reasoning underpinning the majority's conclusion and Basten JA's reasons is challenged as contrary to statements made by this Court in Bonnington & Co Pty Ltd v Lynch[7].  Bonnington was concerned with the meaning of the expression "prescribed premises" in the Landlord and Tenant (Amendment) Act 1948-1949 (NSW). The conclusion that "premises" in the Act should not be given a meaning that excludes areas within a building constructed for the purposes of retail selling is not inconsistent with the statements in Bonnington.

   [7](1952) 86 CLR 259; [1952] HCA 46.

5. The application does not raise any question of general importance nor do the interests of the administration of justice favour the grant of special leave. 

6. The application is dismissed. 

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

J.D. Heydon
13 November 2012 V.M. Bell