Thalassa Pty Limited v Hawkesbury River Marina Pty Ltd - [2005] NSWADT 50

No judgment structure available for this case.

CITATION: Thalassa Pty Limited v Hawkesbury River Marina Pty Ltd [2005] NSWADT 50

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Thalassa Pty Limited
RESPONDENT
Hawkesbury River Marina Pty Limited

FILE NUMBER: 045128

HEARING DATES: 23/02/2005

SUBMISSIONS CLOSED: 02/23/2005

DATE OF DECISION:
03/10/2005

BEFORE: Molloy GB - Judicial Member

APPLICATION: Claim for payment of money

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Liquor Act 1982
Retail Leases Act 1994
Roads Act 1993

CASES CITED: Manly Council v Malouf [2004] NSWCA 299

REPRESENTATION: APPLICANT
E Chrysastomu, barrister
RESPONDENT
D Spencer, solicitor

ORDERS: Leave is granted to either party to approach the Registrar within 21 days of the date of the decision to restore the Application to the list for further directions before me. If no such application is made to the Registrar within 21 days then the Application will be listed for dismissal on Thursday, 31 March 2005 at 3.15p.m. with no order as to costs. In the alternate if such application is made, it is listed for directions on that day.

Background

1 The Respondent is the registered proprietor of the whole of the land in Folio Identifier 501/801289, which land has a lengthy frontage to the Hawkesbury River and upon which land is constructed a building and associated structures known as the “Hawkesbury River Marina”, Dangar Road, McKell Park, Brooklyn (“the Marina”).

2 At all material times the Respondent operated from the site general marina type activities, including the berthing of commuter boats and general berthings, the operation of a slipway with crane and hardstand facilities, holiday accommodation and conference room facilities, installation and servicing of boat moorings and the manufacture and installation of pontoons and jetties. The Respondent also operated an administration and information centre office with facilities for payments of marine accounts. In addition there was operated from the site by a company called Cervene Marine Pty Limited a store known as “Brooklyn Skipper Liquor Store” and businesses including boat hire, water taxi, a motor mechanic’s workshop, a chandlery and a boat brokerage business.

3 In addition, and at all relevant times, there was a leased café in operation from the site, a leased restaurant and a leased souvenir shop, the last-mentioned having ceased at a point of time and thereafter having a change of use in the circumstances which I set out below.

4 Prior to 1 August 1997 the Applicant occupied premises known as “Shop 17” from which it operated a delicatessen and a café. This business ceased on or about 1 August 1997 and the Respondent then occupied Shop 14 in the Marina and incorporated the café part of the business that it previously conducted from Shop 17 into the business it commenced at Shop 14, and ceased to conduct the delicatessen business.

The Lease:

5 The Applicant was the Lessee of the premises known as Shop 14 at the Hawkesbury River Marina, pursuant to a Lease dated 22 September 1997 for a term of five years commencing 1 August 1997 and terminating 31 July 2002 subject to a five year option for renewal, which Lease was registered 3840793 (“the Lease”). I was informed from the Bar table that the option was not exercised but rather the Applicant held over under the Lease and ultimately vacated the premises on 20 January 2003.

6 I was not taken to most of the clauses in the Lease. However, it would seem that the relevant clauses are as follows:

b) Memorandum 30: which required the Applicant to “cause all of its employees working on the premises to wear, during its hours of business, uniforms which shall be of a type and style acceptable to the lessor” (I was not addressed on this clause).

c) Memorandum 31.3: which required the Applicant to “close the premises for business by no later than 7.00pm each day” and to “ensure that all tables and chairs are stored within the premises by no later than 7.15pm”. (This is to be compared with the requirements of the Disclosure Statement, to which I make reference below) which provided that the “core trading hours”, being “the times when retail shops in the shipping (sic) centre are required to be opened for business”, was stated as being “daylight hours”, and Rule 31 of the Lease which required the Applicant to “keep the premises open for business during daylight hours”.

d) Memorandum 32: this created a licence in the Applicant to place tables and chairs on the boardwalk part of the Marina immediately outside the leased premises and strictly within a delineated area. This licence required the “tables and chairs…. (to) be used by the lessee in conjunction with the business operated by the lessee from the premises.”

e) The Permissible Use (clause 5.1, Item 7) was stated as being “Café and Coffee Lounge”.

f) Clause 23 and Item 13 which required the Applicant to pay 10% of specified outgoings. One of the outgoings was for advertising and promotion.

g) There was a registered Memorandum (2412873) which formed part of the Lease. I was not taken to any particular part thereof, other than the amendments noted above, but I note that clause 27.1 of this Memorandum refers to a Disclosure Statement and an acknowledgment by the Applicant that it was given the Disclosure Statement at least seven days before the lease was entered into. I observe that I was in fact taken to this Disclosure Statement.

7 A Disclosure Statement was provided by the Respondent to the Applicant. Relevantly this showed the following:

b) The permitted use was “Café and Coffee Lounge”.

c) The lettable area of the shop was stated as being 52sqm and for the boardwalk (presumably that portion the subject of the said licence) was shown as approximately 85sqm.

d) The Applicant was required to pay 10% of the advertising/ promotion of the Marina, stated as being a total estimate per annum of $11,181.00 and the Applicant’s contribution to be $1,118.10. On page 3 of the Disclosure Statement this contribution is said to be “contribution to retail shopping centre advertising and promotion”.

e) At the foot of page 2 there was a description of “Retail Shopping Centre Details” wherein the name of the “Retail Shopping Centre” was stated to be “Hawkesbury River Marina”, the address of the “Retail Shopping Centre” was stated to be “Brooklyn” and there were a number of other uncompleted (ie left blank) provisions relating to the “Number of Retail of Shops in Retail Shopping Centre” and “Parking Facilities at Retail Shopping Centre”.

f) On page 3 there was stated to be no changes or developments planned by the Respondent for the “Retail Shopping Centre”, the “core trading hours” were stated to be “daylight hours”, there was no tenant association and there were no specified details as to agreements or representations.

8 In evidence was a brochure published by the Respondent prior to 1 August 1997. This was a brochure titled “Hawkesbury River Marina – Something for everyone”. It stated that the Marina offered “a full range of services and supplies for both the holiday maker and the local community”. It stated that there were two modern slipways, fuel available, marine mechanic and electrician available, a ship chandlery “fully stocked with fresh bait and fishing supplies”, boat hire, water taxi service, boat and engine sales service, luxury holiday apartments promoted as “the perfect place for those weekend getaways”, a conference room, a restaurant, a café and delicatessen (this was in fact the premises at Shop 17 occupied and operated by the Applicant prior to 1 August 1997), a laundromat and “clean showers” with the statement “refresh yourselves after a day on the water”; a liquor bottle shop and grocery store and contained a plan of the general area.

Marina Newsletter

9 The evidence showed that on or shortly after 3 August 1997 the Respondent published a “Marina Newsletter” which generally set out all of the above but noted a new purchaser of the liquor store, the chandlery, the boat hire and other businesses, noted that the Applicant had (effectively) taken over Shop 14 (the demised premises) and that the “deli shop” (being the former premises at Shop 17) would be “the new Marina Administration and Information Centre Office with facilities for payments of marina accounts …”.

Changes in Tenant Mix

10 During the term of the lease the souvenir shop closed and at some point of time those premises were occupied by a business known as “Maggies Place” which was stated, in an advertisement for the Marina published in the Daily Telegraph on 16 December 1998, as a place where one could “enjoy a complete de-stress massage … to revitalise yourself from all the hustle and bustle of city life”. The evidence relating to the closure of the souvenir shop and the opening of “Maggies Place” and its subsequent closure was not entirely clear – suffice it to say that it was generally agreed that at some point of time during the term of the Applicant’s lease the souvenir shop (which was operating as at 1 August 1997) closed and at a point of time thereafter, but not immediately after closure, Maggies Place opened and remained open for some months and then closed. I took it from the evidence that its closure also took place before the end of the lease term.

The Application

11 By Application filed 3 November 2004 the Applicant alleged breaches of Retail Leases Act Sections 27, 28, 53, 54 and 55, asserting that the Marina was a “retail shopping centre” within the meaning given to that phrase in the Retail Leases Act (“the Act”). Counsel for the Applicant asserted at the commencement of the hearing that if it was held that the Marina was a retail shopping centre then Section 30 and Part 7 of the Act imported, by operation of the Act, certain provisions into the Lease and as a result thereof the Applicant asserted that the payments that it had made to the Respondent exceeded the payments that the Applicant was obliged to make according to law such that this Tribunal should order return of the asserted overpayments to the Applicant together with interest pursuant to Section 72A. The Applicant also sought orders that would have required the Respondent to provide certain documentation and an auditor’s report and other declarations. The Application itself set out in detail the asserted over-payments, over $165,000.00.

12 It became clear during the course of an opening discussion, that there was a preliminary issue that went to the heart and soul of the matter. The determination of the preliminary issue would, so I was informed, determine how the Application would be subsequently dealt with and the arguments that would be agitated. I then formulated the preliminary issue, in concert with counsel for both parties.

13 Before setting out the preliminary issue it is important that I now set out relevant dates that are crucial for the determination:

3 November 2004: the date of the filing in this Tribunal of the Application now under consideration.

3 November 2001: the date three years prior to the date of such filing (relevant because Section 71(2) of the Act states that “a claim may not be lodged more than three years after the liability or obligation that is the subject of the claim arose”).

8 December 2003: the date the Applicant referred the dispute to the Retail Tenancy Unit (Section 66).

8 December 2000: the date three years before referral to the Unit (the Applicant asserted that the three year period in Section 71 should date from the day when the dispute was referred to the Retail Tenancy Unit).

28 January 2004: Certificate from the Registrar, Retail Tenancy Disputes, that mediation between the parties had “failed to resolve the dispute”.

14 The preliminary issues that were the subject of the hearing 23 February 2005 and upon which the Application depended for its success were formulated as follows:-

B. If so, did the premises factually cease to be part of a retail shopping centre subsequent to 1 August 1997 and, if so, what effect (if any) does that have on the lease contract between the parties?

C. Is the Applicant prohibited by Retail Leases Act Section 71 from agitating any claim that pre-dates 3 November 2001?

D. Is the relevant date in C above 8 December 2000?

15 There are a number of specific provisions of the Act that require analysis for the purposes of determination of the preliminary issues. Firstly, there are a number of definitions in Section 3 as follows:-

retail shop

(a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or

(b) are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre.

Note. Section 5 limits the retail shops to which this Act applies.

retail shop lease or lease means 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:

(a) whether or not the right is a right of exclusive occupation, and

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing.

Note. Section 6 limits the retail shop leases to which this Act applies.

retail shopping centre means a cluster of premises that has all of the following attributes:

(a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1,

(b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within a single strata plan under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986,

(c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops,

(d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade.”

16 Secondly, the following additional sections are relevant:

Section 66: relevantly, this gives a power to any or all of the parties or former parties to a retail shop lease to refer a retail tenancy dispute or other dispute or matter … to the Registrar for mediation of the dispute”.

Section 68(1) provides relevantly: “A retail tenancy dispute ….may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this part has failed to dissolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter”.

Section 71 provides:

(2) A claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose.

Were the premises part of a retail shopping centre as at 1 August 1997.

17 The Marina itself is a building of two levels, containing commercial premises on the ground floor and a second level which comprises a restaurant, an office and 8 residential flats. The Respondent also leases 182m2 from the Hornsby Shire Council from which it operates one of the slipways for 100 tonne vessels. The Respondent holds a licence from the Department of Lands for an adjoining area of 3862m2 below high water in which there are wharves, pontoons and various boat berthing facilities. The Marina is “on” the water and part is constructed over the water. On a sunny day the whole complex is most inviting and pleasing to the eye.

18 The Marina was divided by the Respondent into designated areas. It is not entirely clear from the plans in evidence but doing the best that I can from the plans and the other exhibits it would seem that there were certain leased areas, not necessarily designated as “shops” but otherwise where not so designated certainly clearly delineated. There is no need to review all of the designated/delineated areas in the building – suffice it to say that absent the specific areas mentioned below it would seem that the balance of the building, although delineated/designated specifically, was in fact occupied by the Respondent, alternatively by a tenant whose occupation of those areas was for a business use not the subject of Schedule 1 of the Act. It is important to remember that a “retail shop” is defined in Section 3 of the Act as meaning (inter alia) “premises that are used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1”. There was no argument that, for example, workshop 4/shop 22 was at all material times a workshop and operated as a shipwright’s workshop. Similarly workshop 3/shop 21 was at all material times a diesel mechanic’s workshop; similarly workshop 2/shop 20 was at all material times operated as an outboard engine workshop; and there was no suggestion that any of those uses were a Schedule 1 use.

However, depending upon the view that one takes relating to the definition of “retail shopping centre” it is important to also remember that “retail shop” also includes premises that “are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre” so that, as I understand that definition, if the building is truly categorised as a “retail shopping centre” then it really does not matter whether the business is a ship rights workshop, a diesel mechanic’s workshop, an outboard engine workshop or any other kind of business or whether or not the business use from the premises is a Schedule 1 use. In other words, a retail shopping centre may include a diesel mechanic’s workshop and, if the building is properly so categorised as a retail shopping centre then the lease of the diesel mechanic’s workshop would be governed by the provisions of the Act.

19 It was never in issue that as at 1 August 1997 there were at least four Schedule 1 business uses from delineated premises in the building. Firstly, there was the café occupied by the Applicant (shop 14). Secondly there was the restaurant (on the first floor). Thirdly there was a souvenir shop which was not specified as being a shop on the relevant plans but was delineated as a small area under the stairs in the central courtyard of the building from which its lessees sold souvenirs, art and craft items.

20 Fourthly, there was a liquor/convenience store. This occupied premises delineated as shops 15 and 16 and office No. 10. There was considerable debate on whether those premises comprised one or two premises for the purposes of the Act. There is no definition of “premises” in the Act. The word is of particular importance because of the definitions of “retail shop”, “retail shop lease” and “retail shopping centre”, all of which refer to “premises”. In my opinion it is important to firstly address this question: what are “premises” for the purposes of the Act? I am not aware of any law or decision on this issue, other than the long-running saga of Manly Council v. Malouf which started as [2002] NSWADT 200, on appeal [2003] NSWADTAP 12, on appeal to the Supreme Court then to the Court of Appeal [2004] NSWCA 299, which concerned vacant land governed by the Roads Act, 1993. The issue in this case was entirely different from the issue now before me. Neither counsel was able to further assist me in this regard. However, it seems to me plain that the answer is to be found in the description of leased areas given by the lessor. There is no need for me, in the context of the facts of this case, to launch into a dissertation on the meaning of “premises”. Obviously, “premises” is a word of general meaning but in each case requires a definition consistent with its use. The meaning of the word must fit into the particular context in which it is being used in the Act. Here we are dealing with areas leased to a tenant. An area needs to be defined by reference to a plan or a shop number such that there can be no argument over precisely what area the tenant is entitled to occupy pursuant to the lease contract. It is all a matter of contract. So, when looking at the Act one needs to look at the way in which the lessor/ landlord has delineated the areas of the building to be occupied by the tenant(s) and those areas are then individually described as “premises”. Consequently, a tenant can occupy one premises or more than one premises such that it is each delineated or specified area that forms a “premises” for the purposes of the Act. So, for example, in the definition of “retail shopping centre” one finds the words “a cluster of premises” that has, inter alia, “at least 5 of the premises are used wholly or predominately …”. In order to make sense of that provision one would have to find a building that has at least 5 delineated areas which somehow form, or are part of, a “cluster”. In order to determine the delineated areas one needs to look at the lessor’s plans and see which areas have been delineated by the lessor. If the plans show at least 5 specifically delineated areas then each of those areas constitute a “premises” so that even if there is only one tenant for all of the 5 individually delineated areas that would not alter the fact that there were 5 premises. I observe that if there is no plan then one may have to look at the leases to identify with particularity the area(s) tenanted.

This analysis is important because the liquor and convenience store is stated in the lease to be “Shop 15 and Shop 16 and office no. 10”. On the main plan in evidence (part of Exhibit 1) Shop 15 and 16 are not shown as such. Office 10 is shown. However, in the lease for the liquor/convenience store (Exhibit 2) there is a plan and this shows Shop 15 as being occupied by “liquor store – provisions” and Shop 16 as occupied by “laundromat” and shower facilities.

21 So, for the purposes of the definition of “premises” it seems plain that this lease (of the liquor/convenience store) is in respect of three defined premises, namely: Shop 15 (being the liquor and provision store), Shop 16 (being the laundromat) and office 10. It is difficult to work out from the evidence precisely who occupied office 10. The evidence from the Respondent was to the effect that “this area has been used as a casual office for ourselves and tenants but primarily it is used for storage”. Office 10 on the plan forming part of Exhibit 1 is not contiguous to Shops 15 and 16. The lease of the shops and office shows a permissible use of the “sale of beer, wines and spirits for consumption off the premises, laundromat and office” which seems to indicate the use of the office by the lessee, not by the Respondent. Nothing appears to hang on this.

22 The laundromat is an area occupied by a number of coin/token operated washing machines and dryers and several lock-up showers which are controlled and managed from Shop 15. The evidence discloses that the “necessary token machines for the machines were purchased from the attendant in the shop and similarly the key for the showers was kept there. The laundry facilities were and still are simply part of the business conducted at those premises as one of the services available. The whole of this area was operated as the one business”.

23 The evidence further discloses that the liquor and convenience store was divided into two portions, one delineated for the specific sale of liquor (pursuant to the Liquor Act 1982) and the other for the sale of food and other items. The evidence showed that on days when liquor was not allowed to be sold the liquor area was cut or covered off by use of blankets. On all other occasions the liquor area was available within Shop 15 and persons who wished to purchase liquor would take their purchases to the single counter/central register – presumably a purchaser could purchase liquor and other items but, as I understood it, the liquor would be calculated and recorded separately in the register as required under the Liquor Act 1982.

24 It was strongly submitted by counsel for the Applicant that I should regard the separate area used for the sale of liquor as separate premises for the purposes of the Act, it being urged upon me that the Liquor Act 1982 required such an area to be defined and separated for the purposes of the off licence and that in itself pointed to there being two separate premises. In addition, because accounting for liquor must be kept separate then I should regard the two areas within Shop 15 as being two separate premises, both uses (the convenience store and the liquor store) constituting separate businesses.

25 It is not uncommon for a business to operate a number of businesses from the one premises. In particular, it is not uncommon to find licensed defined premises within the one shop area. For example, one may find liquor being sold in a hardware shop. It does not follow however that the premises should be regarded as two separate premises for the purposes of the Act. In my opinion, once one adopts the view that I have expressed above, namely that the “premises” are defined by the lessor and can be found in the lessor’s leasing plans and the definition of “property leased” in the actual lease itself, then the fact that there are separately licensed premises within those premises does not create two separate premises for the purposes of the Act.

26 It therefore follows that Shop 15 should be regarded as one premises for the purposes of the Act.

27 Now dealing with Shop 16 - this (it will be remembered) was the area occupied by the laundromat and various privately accessed shower areas. A laundromat is not a Schedule 1 use. Clearly, however, premises are defined by the parties in the lease by the description in the lease of the “property leased” and on any view Shop 16 must be regarded as separate premises for the purposes of the Act. The relevance of this observation/finding becomes apparent when one looks at the second definition of “retail shop” which means premises that “are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre” – the fact that a “laundromat” is not a Schedule 1 business does not stop the premises occupied by the laundromat as constituting a “business in a retail shopping centre”, and thereby caught by the Act, if the building in which the premises are situate can be properly categorised as a “retail shopping centre”.

28 But the real question is: does the Applicant satisfy this Tribunal that “at least 5 of the premises are used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1”? The Applicant must, in order for it to succeed in its ultimate claim seeking repayment of alleged overpayment to the Respondent, prove to this Tribunal that the building in which its premises were situate was a retail shopping centre. Thus far I am satisfied that there were in existence at 1 August 1997 at least four Schedule 1 premises: the café, the restaurant, the liquor/convenience store and the souvenir shop. The Applicant needs one more in order to satisfy the first requirement of a “retail shopping centre”.

29 The only other premises to which the Applicant can refer that might fall within Schedule 1 are the premises known as Shops 18 and 19. In the course of the hearing this became a key issue. The Respondent’s evidence was that these were originally two separate areas which were consolidated and the wall between them partly demolished. The evidence was that the “combined area was and still is operated as the administration office for various businesses, which included the operation of water taxis, the hire of boats, the businesses from workshops 2, 3 and 4 (namely the outboard engine workshop, the diesel workshop and the shipwright’s workshop referred to above) the sale of “chandlery” items and the storage of various materials and items required in relation to all (those) businesses”. Putting the matter into perspective, the Applicant’s submission, and very strongly made, was that a chandlery is the equivalent of a hardware business, “hardware shops” being a designated “Schedule 1 business”.

30 The Respondent was clear that the “primary activity conducted from these premises was the administration of (the various businesses referred to above)”. It is plain that the operation of a water taxi service and the hire of boats are not businesses of the types referred to in Schedule 1, although the Applicant urged upon me that the hiring of boats was “equipment hire” such that this (or these) shops could be regarded as “equipment hire shops” – I unhesitatingly reject that submission. If the hiring of boats can be equated to equipment hire then so also is the hiring of motor cars, boats being the marine equivalent. In my opinion a boat cannot be regarded as an item of “equipment” for the purposes of Schedule 1.

31 The Applicant’s evidence, to some extent supported by the Respondent, showed that, and consistent with the marina brochure (referred to in paragraph 8 above), these premises also were “fully stocked with fresh bait and fishing supplies” presumably for sale to the boating public. There is no doubt that this “chandlery” also sold bait, fishing rods and one might also guess sinkers and other fishing bits and pieces. The Applicant’s evidence was that the shop also sold screws, screwdrivers, hammers, and number signs. The Respondent in reply stated that the chandlery items were restricted to parts and items required for boats. These included shackles, winches, propellers, anchors, chains, spare parts for boats and marine engines, marine screws, marine numbers (as required for boating identification) and items of that nature. The Respondent also said that “the sale of chandlery items was only a small part of the activities carried on from this area”.

32 It seems to me that there are two primary issues: firstly, whether the sale of chandlery items is to be equated with the business of a “hardware shop”, a “hardware shop” business being a Schedule 1 business and, secondly, whether the Applicant has satisfied the burden of proof in demonstrating the whole or predominant use of the premises was for the business purposes of Schedule 1.

33 Dealing with now the first issue, the parties generally tended to concentrate on whether a chandlery could be equated to or caught by the words “hardware shops” in Schedule 1. The Applicant submitted that the chandlery was so caught. No definitional argument was put by counsel for the Applicant but rather, as I understood it, the submission was based on the evidence that the type of goods sold by the chandlery were the type of goods one might find in a hardware shop or be otherwise categorised as hardware. There is no doubt that the evidence pointed to the sale of certain items that one might well find in a hardware shop in a suburban shopping area or in a large hardware complex. For example, screws (albeit stainless steel crews and brass screws), nails (albeit copper nails), hammers and screwdrivers. The store also sold numbers, ie number signs or plates that one could affix with screws to a boat or, presumably, to any other object or place. The Respondent’s evidence was to the effect that the chandlery was only a small shop, that the items sold were peculiarly for boats, that they were purchased by persons working on boats for use on boats and included navigation and tide charts. In addition, and as I have stated above, the Respondent’s evidence was also that “the items available for sale were restricted to chandlery items required for boats such as shackles, winches, propellers, anchors, chains and spare parts for boats and marine engines”. The Respondent denied that “general hardware items (were) available for sale from these premises”.

34 The Respondent submitted that the word “chandlery” is defined by the Collins English Dictionary to mean: “the business, warehouse or merchandise of a chandler” and a “chandler” is in part defined as a “dealer in a specified trade or merchandise: corn-chandler, ships-chandler”. The Collins Compact English Dictionary defines “chandler” as “a dealer esp. in ships supplies”. By contrast the Respondent submitted that the term “hardware” is defined to mean “metal tools, implements etc. esp. cutlery or cooking utensils … mechanical equipment components etc.” The Respondent submitted that “it was clear from these definitions alone that chandlery items are different and separate from hardware items”. The submission was extended to the effect that in hardware stores a wide range of goods was sold and that it was “not just a question of the type of goods sold from premises but rather the nature of the business operated from those premises”.

35 There is no doubt that the word “chandler” is of ancient origin. It can, as I understand it, be traced back to the Old French word “Chandelier” meaning “candle-maker or candle-seller”, Nuttall’s The Pocket Pronouncing Dictionary (about 40 years old) describes a chandler as “a seller of candles; a dealer”. The Pocket Oxford Dictionary (1969) describes a chandler as a “dealer in candles, oil, soap, paint etc” as compared to “hardware” as “ironmongery”. The Oxford Paperback Dictionary (1988) describes a chandler as “a dealer in ropes, canvas and other supplies for ships” and “hardware” as “1. tools and household implements etc sold by a shop. 2. weapons, machinery. 3. the mechanical electronic parts of a computer.” The point of that recitation is to demonstrate that the words themselves have developed over the years but are clearly separate and distinct.

36 There are two further useful primary definitional sources: firstly, the Macquarie Dictionary, 3rd Ed, 1997 defines:

“chandlery” as “1. a storeroom for candles

2. the warehouse, wares, or business of a chandler”;

“hardware” as (relevantly) “building materials, tools, etc, ironmongery”; and

“hardware store” as “a shop which sells hardware and often various other goods, as crockery, cutlery, lamps etc”.

“hardware” (relevantly and not including heavy machinery, armaments, mechanical or electronic components of a computer) as “tools and household articles of metal etc”; and

“hardware store” as “a shop specialising in the sale of (tools and household articles of metal etc) and usually also stocking such items as garden equipment, crockery, etc”.

37 One now looks at Schedule 1. It will be remembered that a business needs to fall within Schedule 1 if its lease is to be described as a “retail shop” within the definition (or it is in a retail shopping centre). Schedule 1 goes to considerable trouble to specify in detail the type of retail shop businesses that are caught by the leasing requirements of the Act. For example, the Schedule differentiates between “florist shops” and “flower shops”. Similarly, the Schedule differentiates between “biscuit bar shops” and “cookie shops”. Furthermore, the Schedule gives numerous food businesses specific treatment – for example: biscuit bar shops, butcher shops, cake shops, confectionary shops, convenience food shops, cookie shops, delicatessen shops, fast food shops, fruit and vegetable shops, fruit juice shops, grocery shops, health food shops, hot bread kitchen shops, ice cream shops, nut bar shops, pastry shops, seafood shops, small goods shops, snackbars, softdrink shops, supermarkets, takeaway food shops and vitamin shops. For reasons only known to the legislature it did not use a general all-encompassing catch-all phrase like “any shop selling food for human consumption” but rather sought to differentiate or specify the types of businesses that are caught by Schedule 1. It would not have been difficult to have included “chandlery shops” in Schedule 1 if the legislature had regarded that type of business as one that ought to be covered by Schedule 1. After all, chandleries have been around for hundreds of years and are well known as shops which specifically provide items for marine/boat use. Although the meaning seems to have changed over the years there is no doubt, in my view, that by 1994 (the date of the Act) the word “chandlery” had a quite specific common meaning as a place where one would go to purchase items and equipment for marine/boat use.

38 In my opinion the word “chandlery” is so totally different from “hardware” in common use that its non-inclusion in Schedule 1 means that it was not intended to be included in that Schedule. By way of aside the word “hardware shops” would certainly not be referrable within the terms of the Act to military hardware nor computer hardware – one needs to read down various meanings of a word like “hardware” to fit within the general intent of the Act to cover retail shop leases as specified within Schedule 1 or otherwise caught if the business is within a retail shopping centre.

39 It therefore follows that a chandlery is not a Schedule 1 business and therefore (in my opinion) cannot be included as one of the minimum of 5 premises caught by the first sub-paragraph of the definition of retail shopping centre.

40 It is important to understand that unless there are at least 5 premises used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1 then the building does not constitute a retail shopping centre – this is to be contrasted with a non-schedule 1 business which is caught by the Act because the business is carried on in a retail shopping centre. One does not get to this point until one crosses the first threshold, namely that at least 5 of the premises are so used. In my opinion, having regard to my findings relating to the chandlery, as at 1 August 1997 there were only 4 shops that could have possibly fallen within Schedule 1, namely the café, the restaurant, the souvenir shop and the liquor/convenience shop.

41 I should make this additional observation: the evidence from the Respondent was quite clear and to all intents and purposes unchallenged – this was to the effect that whatever the finding may have been with regard to the chandlery business “the sale of chandlery items was only a small part of the activities carried on from” these premises. As I have pointed out above, the evidence demonstrated that the premises were and are “operated as the administration office for various businesses which included the operation of water taxis, the hire of boats” the shipwright’s workshop, the diesel mechanic’s workshop, the outboard engine workshop “and the storage of various materials and items required in relation to all of these businesses. The primary activity conducted from these premises was the administration of these businesses … the sale of chandlery items was only a small part of the activities carried on from” these premises. If that evidence is accepted, and I so accept it, then it could not be said that the premises were “used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1” even if one accepted that a chandlery could be equated or included in the phrase “hardware shops”. This leads me to the second point: the onus of proof is on the party asserting that the premises are so used. The words in the definition are quite clear – the premises must be used “wholly or predominately”. In my view the evidence of the Applicant fell well short of even prima facie proof of such use. There are methods of proving use but these evidentiary tools were not availed of by the Applicant. Although it is true that the standard of proof is the civil standard where a matter is hotly contested and where the evidence of the Respondent was clearly very detailed relating to the use of Shops 18 and 19 then the Applicant is on notice that this is a very live issue, an issue vital for its case, and if it wished to seriously agitate the point then the evidence would need to be much more powerful and persuasive than that it elected to lead. To merely point to the sale of bait and fishing rods and odd items that may be available in hardware shops does not discharge and goes nowhere near discharging the requirement to demonstrate whole or predominant use.

42 That probably disposes of the first issue. It is plain in my view that the Applicant has not satisfied me that the premises were part of a retail shopping centre as at 1 August 1997 simply because there were not “at least 5 of the premises (being) used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1” as at 1 August 1997.

43 It was submitted that there was some form of admission by the Respondent to the effect that the premises were a retail shopping centre. This submission arose out of the terms of the Lease, the terms of the Disclosure Statement and the various publicity materials to which I have referred above.

44 There is no need for me to set out again that material – it is adequately summarised above. The submission goes towards the fourth sub-paragraph of the definition of “retail shopping centre” (it being conceded by all parties that the second and third sub-paragraphs were satisfied) – this last sub-paragraph is in the following terms:

(d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, a shopping mall, a shopping court or shopping arcade”.

45 The fact that a Respondent in its Disclosure Statement refers to the premises as forming part of a “retail shopping centre” is not determinative. The question is one of fact to be determined by the Tribunal on the evidence that is produced. The Tribunal is entitled to form its own opinion on the evidence and cannot be bound by some alleged admission by the Respondent neither is the Respondent estopped from asserting otherwise. After all, the statement may well be false, not deliberately but perhaps inadvertently or without thought as to whether in fact the building is a retail shopping centre. There is no doubt that the Applicant was required to contribute to an advertising/promotion levy. It does not follow from that fact that the premises are a retail shopping centre. Neither does it follow from the core trading hours as being “daylight hours” – that fact is equally relevant to a boating marina. The Applicant also relied on its contractual obligation to use the words “Hawkesbury River Marina” in all advertising for “the Applicant’s business conducted from the premises” but this is equally referrable to providing an address for the Applicant’s business – on the evidence before me it did not seem that there was a postal address other than care of the Hawkesbury River Marina, Dangar Road, McKell Park, Brooklyn. The reliance on the advertising material to which I have made reference does not, in my view, result in a finding that the “cluster of premises (was) promoted as, or generally regarded as constituting, a shopping centre etc”. No submission was made to me that would support a contention that this building was “generally regarded as constituting” a shopping centre. The best that the Applicant could say was that the building was so promoted. I am unable to see anything in the material that would encourage me to draw that conclusion. There is no doubt that the various premises within the Marina building offered a wide range of items and activities but it is crystal clear (in my opinion) that the Marina was marketed, not as a place to go for shopping but rather as a place to go for enjoyment, particularly marine enjoyment, where one could go for boating services, something to eat and drink, to sit in enjoyable surroundings on the water. That is a far cry from being a “shopping centre” as one would generally regard those words. In my opinion it is a matter of fact to be deduced from the evidence and in my opinion the Applicant has not satisfied me that the cluster of premises was promoted as a shopping centre.

46 It therefore follows that the Applicant has not satisfied me that at least 5 of the premises were used as at 1 August 1997 wholly or predominately for the carrying on one or more of the businesses specified in Schedule 1, neither has the Applicant satisfied me that the cluster of premises was promoted as, or generally regarded, as constituting a shopping centre, a shopping mall, shopping court or shopping arcade. In these circumstances it must follow that the building (the Marina) is not a “retail shopping centre” within the meaning of the Act. The answer to the first preliminary issue is therefore “No”.

Second Preliminary Issue

Did the premises factually cease to be part of a retail shopping centre subsequent to 1 August 1997 and, if so, what effect (if any) does that have on the lease contract between the parties?

47 This preliminary issue is predicated on there being an affirmative answer to the first preliminary issue. Having regard to my finding on that issue there is no need to take this second issue further. However, a considerable amount of time was expended by the parties at the hearing on this issue on the presumption that the premises were in fact part of a retail shopping centre as at 1 August 1997 if so found. In the event that I am wrong on the first issue then I shall deal with this second issue. The Respondent contended that because the souvenir shop ceased to be occupied, and assuming that the chandlery was a Schedule 1 business, and there being no other additional Schedule 1 businesses, then at the time the souvenir shop ceased to operate there were less than 5 premises used for Schedule 1 purposes and the building would therefore cease to be a shopping centre such that the Applicant could not have sought the relief that it was seeking in its Application. The Respondent submitted that the rights and obligations under the Lease as entered into and not otherwise affected by any overriding provisions of the Act would not change and would continue even though the situation had changed because the building was “no longer a retail shopping centre” because there were no longer 5 shops with Schedule 1 businesses. The issue is important because the Applicant maintained that contrary to the Lease the complex was a retail shopping centre and consequently the outgoings should have been dealt with in manner other than as agreed and specified in the Lease and as specified in the Act. So, as I understood the Respondent’s argument, if the Schedule 1 businesses fell below the threshold of 5 then the rights of the parties somehow changed such that they were thrown back to their contractual rights under the Lease unaffected by the overriding requirements of Section 30 and Part 7 which (on the Applicant’s case) applied and determined the rights of the parties as at 1 August 1997.

48 In my view that is an argument that has no legal basis. If it was established that the building was a retail shopping centre as at 1 August 1997 and at some subsequent time during the term of the Lease less than 5 of the premises were used for Schedule 1 businesses, it seems to me that the contractual rights of the parties are fixed as at 1 August 1997 and cannot be varied, absent contractual or legislative entitlement, simply because there is a change of business use of other premises within the building such that there were less than 5 Schedule 1 uses. I know of no law that would permit such a conclusion.

49 The principle works both ways – so, where one premises only are used for a Schedule 1 business and subsequently at least 5 premises become used for Schedule 1 businesses, that would not change the contractual rights of the parties to the lease of the first Schedule 1 premises. The fact that the building subsequently becomes a retail shopping centre does not affect the contractual rights of those tenants who occupied premises within that centre prior to it becoming a retail shopping centre.

50 In my opinion if the premises were a retail shopping centre as at 1 August 1997 and factually ceased to be part of a retail shopping centre subsequent to that date then that fact would not effect the lease contract between the parties.

Issues 3 and 4

Is the Applicant prohibited by Retail Leases Act 1994 Section 71 from agitating any claim that pre-dates 3 November 2001, or 8 December 2000?

51 It may well be that consideration of this issue becomes otiose because of the findings that I have made with regard to the first preliminary issue. However, that is a matter for the Applicant and its legal advisers to consider. The Respondent contends that the Applicant is restricted by Section 71. The Applicant agrees that Section 71 has effect but submits that the relevant date is 8 December 2000 being three years prior to when the matter was referred to the Retail Tenancy Unit on 8 December 2003.

52 In my opinion the answer to this question is very simple and is to be found within the terms of Section 71 itself. Section 71(1) states: “A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim”. It is plain in my view that the claim is a claim within Division 3, is a claim within the definition of “retail tenancy claim” in Section 70 and only becomes a claim when it is in fact lodged with this Tribunal for determination. A retail tenancy claim is a totally different animal from a dispute which is referred to mediation. I have made reference above to the sections of the Act which deal with mediation of disputes. A dispute is not a retail tenancy claim. Although it is true that a retail tenancy dispute “may not be the subject of proceedings before any court unless or until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this part is unlikely to resolve the dispute or matter” (Section 68(1)) such that it is often said, incorrectly in my view, that mediation is a pre-requisite to filing a retail tenancy claim, the fact is that a retail tenancy claim is a specific action that is taken by a party to this Tribunal and in my view Section 71(2), which provides that a “claim may not be lodged more than three years after the liability or obligation that is the subject of the claim arose” applies by reference to the date on which the Applicant files its claim in this Tribunal. In the instant case that date was 3 November 2004 such that the Applicant is prohibited by Section 71 from agitating any claim that pre-dates 3 November 2001.

53 The Applicant submitted that dating Section 71 from the date of filing of the Application in this Tribunal would be unfair/inequitable because any delay in mediation, or refusal to mediate, or refusing to settle would result in a consequent reduction of the amount for which the Respondent would be otherwise liable. Be that as it may, Section 71 is, in my opinion, quite clear and operates as I have stated above.

Further Proceedings

54 This decision deals with the four preliminary issues raised at the commencement of the hearing. The parties should now have the opportunity of considering my reasons. Leave will be granted to either party to restore the Application to the list for further directions within 21 days of the date of this decision. Should neither part approach the Registrar for that purpose within 21 days then there will be a formal self-executing order that the proceedings are dismissed, no order as to costs.

55 Finally, the hearing was conducted eloquently, robustly and with a sense of humour. Having regard to my determination and findings I would earnestly press the parties to resolve amicably any outstanding issues without the further intervention of the Tribunal.

Findings:

Were the premises part of a retail shopping centre as at 1 August 1997?

I answer: No.

2. In answer to the question:

If so, did the premises factually cease to be part of a retail shopping centre subsequent to 1 August 1997 and, if so, what effect (if any) does that have on the lease contract between the parties.

I answer: Unnecessary to decide, save that if the premises formed part of a retail shopping centre and during the course of the lease the number of leased premises used wholly or predominately for the carrying on of one or more of the businesses specified in Schedule 1 fell below 5, the lease contract between the parties as at 1 August 1997 would not be thereby effected.

3. In answer to the question:

Is the Applicant prohibited by Retail Leases Act Section 71 from agitating any claim that pre-dates 3 November 2001?

I answer: Yes.

4. In answer to the question:

Is the relevant date in 3, above 8 December 2000?

I answer: No.

Leave is granted to either party to approach the Registrar within 21 days of the date of the decision to restore the Application to the list for further directions before me. If no such application is made to the Registrar within 21 days then the Application will be listed for dismissal on Thursday, 31 March 2005 at 3.15p.m. with no order as to costs. In the alternate if such application is made, it is listed for directions on that day.

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Citations

Thalassa Pty Limited v Hawkesbury River Marina Pty Ltd [2005] NSWADT 50

Most Recent Citation

Tringas v Quach [2007] NSWADT 24

Cases Citing This Decision

3

Patane v Minister for Primary Industries (GD) [2006] NSWADTAP 46

Thalassa Pty Limited v Hawkesbury River Marina Pty Limited [2005] NSWADTAP 48

Tringas v Quach [2007] NSWADT 24

Cases Cited

3

Statutory Material Cited

3

Malouf v Manly Council (No 2) [2002] NSWADT 200

Manly Council v Malouf [2003] NSWADTAP 12

Manly Council v Malouf [2004] NSWCA 299

CITATION:	Thalassa Pty Limited v Hawkesbury River Marina Pty Ltd [2005] NSWADT 50
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Thalassa Pty Limited RESPONDENT Hawkesbury River Marina Pty Limited
FILE NUMBER:	045128
HEARING DATES:	23/02/2005
SUBMISSIONS CLOSED:	02/23/2005
DATE OF DECISION:	03/10/2005
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Liquor Act 1982 Retail Leases Act 1994 Roads Act 1993
CASES CITED:	Manly Council v Malouf [2004] NSWCA 299
REPRESENTATION:	APPLICANT E Chrysastomu, barrister RESPONDENT D Spencer, solicitor
ORDERS:	Leave is granted to either party to approach the Registrar within 21 days of the date of the decision to restore the Application to the list for further directions before me. If no such application is made to the Registrar within 21 days then the Application will be listed for dismissal on Thursday, 31 March 2005 at 3.15p.m. with no order as to costs. In the alternate if such application is made, it is listed for directions on that day.