Sydney Markets Ltd v Wilson - [2011] NSWCA 201

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sydney Markets Ltd v Wilson [2011] NSWCA 201
Hearing dates: 30 May 2011
Decision date: 25 July 2011
Before: Hodgson JA at 1; Basten JA at 50; Tobias AJA at 82
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent's costs, assessed on a submitting basis.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: LANDLORD and TENANT - Occupancy agreement for stand in Paddy's Markets - Whether a "retail shop lease" within s 3 of the Retail Leases Act 1994 - Whether the stand was a "retail shop" - Whether the stand was "premises" - Whether the stand was used or proposed to be used for the purpose of the business of "gift shop" and/or "stationery shop".
Legislation Cited: Administrative Decisions Tribunal Act s 119
Landlord and Tenant (Amendment) Act 1948 (NSW) Part III
Retail Leases Act 1994 ss 3, 5, 33, 61, 70, 71
Cases Cited: Bonnington & Co Pty Ltd v Lynch [1952] HCA 46; 86 CLR 259
R v Brown [1996] 1 AC 543
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Greenwood v Whelan [1967] 1 QB 396
Hooper v Kenshole (1877) 2 QBD 127
Hope v Bathurst City Council (1986) 7 NSWLR 669
Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60
Manly Council v Malouf [2004] NSWCA 299; (2004) 61 NSWLR 394
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Sydney Markets Ltd v Wilson [2010] NSWADTAP 45
Turner v York Motors Pty Ltd [1951] HCA 52; 85 CLR 55
Wilson v Sydney Markets Ltd [2009] NSWADT 256
Wilson v Sydney Markets Ltd (No 2) [2009] NSWADT 281
Category: Principal judgment
Parties: appellant: SYDNEY MARKETS LIMITED ACN 077 119 290
respondent: William WILSON
Representation: appellant: M ASHHURST SC/ S DOCKER
respondent: submitting appearance except as to costs
appellant: Kemp Strang Lawyers
respondent: unrepresented

File Number(s): 2010/240343
Decision under appeal

Citation:

Sydney Markets Ltd v Wilson [2010] NSWADTAP 45
Wilson v Sydney Markets Limited (No 2) [2009] NSWADT 281

Before:

Fox R - Judicial Member
Deputy President D Patten; Deputy President S Higgins; and Non-Judicial Member B Weule

File Number(s):

099075

Judgment

HODGSON JA: On 11 September 2009 the respondent (Mr Wilson) commenced proceedings in the Administrative Decisions Tribunal (ADT) against the appellant (Sydney Markets) seeking relief pursuant to s 61 of the Retail Leases Act 1994 ( RL Act ).

On 11 November 2009, the ADT relevantly made the following orders:

a. Applicant's Occupancy Agreement for the shop conducted from stalls 234, 235 and 236 at…

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: [2011] NSWCA 201
Decision Date: 25 July 2011

CaseChat Overview and Summary

Sydney Markets Ltd (the appellant) and Mr Wilson (the respondent) were parties to an occupancy agreement for a stand within Paddy's Markets. The dispute concerned whether this occupancy agreement constituted a "retail shop lease" under the *Retail Leases Act 1994* (NSW). The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the stand occupied by the respondent qualified as a "retail shop" and whether it constituted "premises" as defined by section 3 of the *Retail Leases Act 1994*. Further, the Court had to determine if the stand was used, or proposed to be used, for the business purposes of a "gift shop" and/or a "stationery shop".

The Court of Appeal dismissed the appeal. The reasoning of the Court, though not detailed in the provided text, would have involved an interpretation of the statutory definitions of "retail shop" and "premises" in the context of the nature of the occupancy agreement and the use of the stand within Paddy's Markets. The Court applied the principles of statutory interpretation to ascertain the legislative intent behind the *Retail Leases Act 1994* and its application to the specific circumstances of the respondent's stall. The appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs, assessed on a submitting basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Sydney Markets Ltd v Wilson [2011] NSWCA 201
Hearing dates:	30 May 2011
Decision date:	25 July 2011
Before:	Hodgson JA at 1; Basten JA at 50; Tobias AJA at 82
Decision:	(1) Appeal dismissed. (2) Appellant to pay the respondent's costs, assessed on a submitting basis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	LANDLORD and TENANT - Occupancy agreement for stand in Paddy's Markets - Whether a "retail shop lease" within s 3 of the Retail Leases Act 1994 - Whether the stand was a "retail shop" - Whether the stand was "premises" - Whether the stand was used or proposed to be used for the purpose of the business of "gift shop" and/or "stationery shop".
Legislation Cited:	Administrative Decisions Tribunal Act s 119 Landlord and Tenant (Amendment) Act 1948 (NSW) Part III Retail Leases Act 1994 ss 3, 5, 33, 61, 70, 71
Cases Cited:	Bonnington & Co Pty Ltd v Lynch [1952] HCA 46; 86 CLR 259 R v Brown [1996] 1 AC 543 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 Greenwood v Whelan [1967] 1 QB 396 Hooper v Kenshole (1877) 2 QBD 127 Hope v Bathurst City Council (1986) 7 NSWLR 669 Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 Manly Council v Malouf [2004] NSWCA 299; (2004) 61 NSWLR 394 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Sydney Markets Ltd v Wilson [2010] NSWADTAP 45 Turner v York Motors Pty Ltd [1951] HCA 52; 85 CLR 55 Wilson v Sydney Markets Ltd [2009] NSWADT 256 Wilson v Sydney Markets Ltd (No 2) [2009] NSWADT 281
Category:	Principal judgment
Parties:	appellant: SYDNEY MARKETS LIMITED ACN 077 119 290 respondent: William WILSON
Representation:	appellant: M ASHHURST SC/ S DOCKER respondent: submitting appearance except as to costs appellant: Kemp Strang Lawyers respondent: unrepresented
File Number(s):	2010/240343
Decision under appeal	Citation: Sydney Markets Ltd v Wilson [2010] NSWADTAP 45 Wilson v Sydney Markets Limited (No 2) [2009] NSWADT 281 Before: Fox R - Judicial Member Deputy President D Patten; Deputy President S Higgins; and Non-Judicial Member B Weule File Number(s): 099075