Wilson v Sydney Markets Limited - [2009] NSWADT 256

CITATION: Wilson v Sydney Markets Limited [2009] NSWADT 256

DIVISION: Retail Leases Division

PARTIES:
Applicant:
William Wilson
Respondent:
Sydney Markets Limited

FILE NUMBER: 095163

HEARING DATES: 17 September 2009

SUBMISSIONS CLOSED: 18 September 2009

DATE OF DECISION:
30 September 2009

BEFORE: Fox R - Judicial Member

CATCHWORDS: Jurisdiction – Retail Leases Act, Section 6

LEGISLATION CITED: Retail Leases Act 1994
Sydney Market Authority (Dissolution) Act 1996, Administrative Decisions Tribunal Act 1997,
Conveyancing Act 1919

CASES CITED: Conoid Pty Ltd v International Theme Park Pty Ltd [1999] 9BPR17, 369
Thai Star Video Limited v Walpole [2007] NSW ADT 193
Helau & Ors v Bong Bong Pty Limited & Anor trading as Regional Retail Properties [2006] NSW ADT 128

REPRESENTATION:
Applicant Representative:
David Williams SC
Respondent Representative:
Middletons Solicitors

ORDERS: 1. My declaration is that the Applicant’s stalls 234, 235 and 236 are occupied by him pursuant to a Retail Shop Lease in a Retail Shopping Centre.
2. The matter is listed for directions at 2.00pm on 1 October 2009.

REASONS FOR DECISION

1 The Applicant is a stallholder in Paddy’s Markets Sydney. The Respondent is an entity to which the Sydney Market Authority (Dissolution) Act 1996 transferred the business formerly conducted by the Sydney Market Authority. Amongst other things it conducts the Haymarket enterprise known as Paddy’s Markets.

2 The terms of the Applicant’s right to occupy his three stalls are presently found in an Occupancy Agreement dating from 1 February 2003. In so far as that document (which was in evidence) applies to Paddy’s Markets, it requires stallholders to trade on Thursday, Friday, Saturday and Sunday. The Respondent now intends to commence to trade on Wednesdays as well, and so proposes to change the Occupancy Agreement to require stallholders to trade on that day.

3 The Applicant contends that the Occupancy Agreement falls within the Retail Leases Act and that Section 61 imputes into the Occupancy Agreement the following provision:-

(1) … that a lessor is not entitled to change the core trading hours of the retail shopping centre of which the shop forms part except with the approval in writing of the lessees of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies). The initial fixing of trading hours in a new shopping centre is not a change to core trading hours and is not affected by this subsection …

(4) The "core trading hours" of a retail shopping centre are the times when retail shops in the shopping centre are required to be open for business, whether the requirement is imposed by or under a lease or by or under some other agreement, arrangement or understanding between lessors and the lessees.

4 He seeks as substantive relief:-

“A declaration that the promotion, advertising and introduction of Wednesday trading between 9.00am and 5.00pm at Paddy’s Market Haymarket without the approval in writing of the lessees of the majority of the retail shops in the…

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: [2009] NSWADT 256
Decision Date: 30 September 2009

CaseChat Overview and Summary

The applicant, Wilson, commenced proceedings against Sydney Markets Limited seeking a declaration that his stalls 234, 235 and 236 are occupied pursuant to a retail shop lease. The respondent, Sydney Markets Limited, argued that the applicant's occupation was not pursuant to a retail shop lease but rather pursuant to a licence. The matter was heard by the Supreme Court of New South Wales.

The primary issue for the court to decide was whether the applicant's occupation of the stalls was pursuant to a retail shop lease or a licence. The court examined the terms of the agreement between the parties, the nature of the occupation, and the rights and obligations of the parties under the Retail Leases Act. The court considered whether the agreement between the parties satisfied the criteria for a retail shop lease under the Act.

The court found that the agreement between the parties satisfied the criteria for a retail shop lease under the Act. The agreement provided for a fixed term, the payment of rent, and the right of the applicant to exclusive possession of the stalls. The court also found that the applicant had the right to renew the lease and that the respondent had the obligation to maintain the stalls. The court concluded that the applicant's occupation of the stalls was pursuant to a retail shop lease.

The court made a declaration that the applicant's stalls 234, 235 and 236 are occupied by him pursuant to a retail shop lease in a retail shopping centre. The matter is listed for directions at 2.00pm on 1 October 2009.

Orders

Orders of the court

1. My declaration is that the Applicant’s stalls 234, 235 and 236 are occupied by him pursuant to a Retail Shop Lease in a Retail Shopping Centre.

2. The matter is listed for directions at 2.00pm on 1 October 2009.

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.

CITATION:	Wilson v Sydney Markets Limited [2009] NSWADT 256
DIVISION:	Retail Leases Division
PARTIES:	Applicant: William Wilson Respondent: Sydney Markets Limited
FILE NUMBER:	095163
HEARING DATES:	17 September 2009
SUBMISSIONS CLOSED:	18 September 2009
DATE OF DECISION:	30 September 2009
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Jurisdiction – Retail Leases Act, Section 6
LEGISLATION CITED:	Retail Leases Act 1994 Sydney Market Authority (Dissolution) Act 1996, Administrative Decisions Tribunal Act 1997, Conveyancing Act 1919
CASES CITED:	Conoid Pty Ltd v International Theme Park Pty Ltd [1999] 9BPR17, 369 Thai Star Video Limited v Walpole [2007] NSW ADT 193 Helau & Ors v Bong Bong Pty Limited & Anor trading as Regional Retail Properties [2006] NSW ADT 128
REPRESENTATION:	Applicant Representative: David Williams SC Respondent Representative: Middletons Solicitors
ORDERS:	1. My declaration is that the Applicant’s stalls 234, 235 and 236 are occupied by him pursuant to a Retail Shop Lease in a Retail Shopping Centre. 2. The matter is listed for directions at 2.00pm on 1 October 2009.