Sydney Markets Ltd v Wilson - [2010] NSWADTAP 45

Appeal Panel - Internal

CITATION: Sydney Markets Ltd v Wilson [2010] NSWADTAP 45

PARTIES:
APPELLANT
Sydney Markets Limited
RESPONDENT
William Wilson

FILE NUMBER: 099075

HEARING DATES: 7 April 2010

SUBMISSIONS CLOSED: 7 April 2010

DATE OF DECISION:
22 June 2010

BEFORE: Patten D - Deputy President; Higgins S - Judicial Member; Weule B - Non-Judicial Member

CATCHWORDS: Retail Leases-meaning of Retail Shop-meaning of retail shopping centre - markets

DECISION UNDER APPEAL: Wilson v Sydney Markets Limited [2009] ADT 256

FILE NUMBER UNDER APPEAL: 095163

LEGISLATION CITED: Administrative Decisions Tribunal Act 1994
Retail Leases Act 1994
Sydney Markets Authority Dissolution Act 1997

CASES CITED: Manly Council, v Malouf (2004) 61 NSWLR 394
Moweno v Status Promotions Pty Ltd (2003) NSWCA 376
Royal Automobile Club of Australia v The Sydney City Council (1992) 27 NSWLR282 at 293-294:

REPRESENTATION:
APPELLANT
R Carruthers, counsel
RESPONDENT
D Williams, SC counsel

ORDERS: 1.Appeal allowed
2.Declarations (b) (c) (d) (e) (f) (g) and (h) made by the Tribunal on 29 October 2009 set aside.
3.Declare that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require actually or constructively the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays
4.No order as to costs.

REASONS FOR DECISION

1 This is an appeal from a decision of a Judicial Member given on 1 November 2009 (2009 NSW ADT 281). The appeal raises a number of questions of law in respect of which it is contended that the Tribunal erred.

2 Section 77 of the Retail Leases Act 1994 (the RLA), confers appellate jurisdiction upon an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997. Section 113 of the statute regulates such appeals in that they may be made on any question of law and with the leave of the Appeal Panel may extend to a review of the merits of the appealable decision. In this case, in addition to seeking the resolution of the identified questions of law, the appellant sought leave to extend the appeal to the merits.

3 The declarations and orders made by the Tribunal on 11 November 2009 were as follows:

1.Declare that:-

a. Applicant’s Occupancy Agreement for the shop conducted from stalls 234, 235 and 236 at Sydney’s Paddy’s Markets is a Retail Shop Lease in terms of the Retail Leases Act .

b. Sydney’s Paddy’s Markets is a retail shopping centre in terms of the Retail Leases Act .

c. Section 61 of the Retail Leases Act imports its words into the Applicant’s Occupancy Agreement.

d. the Wednesday trading proposed by the Respondent is a change in the Applicant’s core trading hours within the terms of the words imported into his Occupancy Agreement by s61 of the Retail Leases Act .

e. the Respondent cannot require the Applicant to vacate stalls 234, 235 and 236 on Wednesdays, for Wednesday trading by others…

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: [2010] NSWADTAP 45
Decision Date: 22 June 2010

CaseChat Overview and Summary

Sydney Markets Ltd brought an appeal against a decision made by the Retail Tenancies Tribunal of New South Wales. The Tribunal had ruled that the respondent, Wilson, was required to open certain stands at Paddy’s Market on Wednesdays. The appellant argued that the Tribunal's interpretation of the meaning of "retail shop" and "retail shopping centre" in the context of the Retail Tenancies Act 1994 (NSW) was incorrect. The court had to determine whether the respondent was legally required to open the specified stands on Wednesdays, given the nature of the market and its operation.

The central legal issue was the interpretation of "retail shop" and "retail shopping centre" in the Retail Tenancies Act. The court had to consider whether the physical characteristics of the market and the nature of the trading activities at Paddy’s Market qualified it as a "retail shopping centre." Additionally, the court examined whether the respondent's lease agreement required her to open the specified stands on Wednesdays. This involved a detailed analysis of the market's structure and operation, as well as the terms of the lease.

The court found that the respondent was not required to open the stands on Wednesdays. It held that Paddy’s Market did not qualify as a "retail shopping centre" under the Act. The court noted that the market's operation was fundamentally different from that of a typical retail shopping centre, as it involved a variety of traders selling different types of goods on specific days. Furthermore, the court determined that the lease did not impose a requirement for the respondent to open the stands on Wednesdays. Consequently, the notice given by the appellant to the respondent was of no effect in so far as it purported to require her to open the stands on Wednesdays.

The appeal was allowed, and the declarations made by the Tribunal were set aside. The court declared that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays. No order was made as to costs.

Orders

Orders of the court

1.Appeal allowed

2.Declarations (b) (c) (d) (e) (f) (g) and (h) made by the Tribunal on 29 October 2009 set aside.

3.Declare that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require actually or constructively the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays

4.No order as to 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Sydney Markets Ltd v Wilson [2010] NSWADTAP 45
PARTIES:	APPELLANT Sydney Markets Limited RESPONDENT William Wilson
FILE NUMBER:	099075
HEARING DATES:	7 April 2010
SUBMISSIONS CLOSED:	7 April 2010
DATE OF DECISION:	22 June 2010
BEFORE:	Patten D - Deputy President; Higgins S - Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS:	Retail Leases-meaning of Retail Shop-meaning of retail shopping centre - markets
DECISION UNDER APPEAL:	Wilson v Sydney Markets Limited [2009] ADT 256
FILE NUMBER UNDER APPEAL:	095163
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1994 Retail Leases Act 1994 Sydney Markets Authority Dissolution Act 1997
CASES CITED:	Manly Council, v Malouf (2004) 61 NSWLR 394 Moweno v Status Promotions Pty Ltd (2003) NSWCA 376 Royal Automobile Club of Australia v The Sydney City Council (1992) 27 NSWLR282 at 293-294:
REPRESENTATION:	APPELLANT R Carruthers, counsel RESPONDENT D Williams, SC counsel
ORDERS:	1.Appeal allowed 2.Declarations (b) (c) (d) (e) (f) (g) and (h) made by the Tribunal on 29 October 2009 set aside. 3.Declare that the notice dated 9 July 2009 given by the appellant to the respondent was of no effect in so far as it purported to require actually or constructively the respondent to open stands 234, 235 and 236 at Paddy’s Market for trading on Wednesdays 4.No order as to costs.