Wilson v Sydney Markets Limited (No 2)
[2009] NSWADT 281
•11 November 2009
CITATION: Wilson v Sydney Markets Limited (No 2) [2009] NSWADT 281 DIVISION: Retail Leases Division PARTIES: APPLICANT
RESPONDENT
William Wilson
Sydney Markets LimitedFILE NUMBER: 095163 HEARING DATES: 26 and 29 October 2009 SUBMISSIONS CLOSED: 10 November 2009
DATE OF DECISION:
11 November 2009BEFORE: Fox R - Judicial Member CATCHWORDS: S61, core trading hours LEGISLATION CITED: Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997CASES CITED: Manly Council v Malouf (2004) 61 NSWLR 394
Wilson v Sydney Markets Limited [2009] NSWADT 256REPRESENTATION: APPLICANT
RESPONDENT
D Williams SC
R Carruthers, barristerORDERS: 1Declare 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 until the Respondent has the approval in writing of a majority of the traders who are permanent stallholders trading at Sydney’s Paddy’s Markets
f. the Respondent may not change the core trading hours of Sydney’s Paddy’s Markets to include Wednesday trading between 9am to 5pm until it has the approval in writing of a majority of the traders who are permanent stallholders trading at that venue.
g. the introduction or the advertising or promotion of Wednesday trading to stallholders in Paddy’s Haymarket is to clearly indicate that if such trading requires traders who are permanent stallholders to vacate their stands for Wednesdays, then such trading cannot take place until a majority of traders who are permanent stallholders vote to trade on that day.
h. the approval in writing is to be by way of a secret ballot, one vote per trader, which is to be conducted at such times as Applicant and Respondent may agree, or if they cannot agree, as directed by me, on application of either party on 12 November 2009 at 2pm
2.Listed for further directions on 12 November 2009 at 2pm.
REASONS FOR DECISION
1 This matter first came before me as an Urgent Interim Application by the Applicant on 17 September 2009. The Applicant (who conducts a stall at Sydney Markets) sought (in broad summary) a declaration to the effect that the Respondent (“Sydney Markets”) could not change the core trading hours of Sydney Paddy’s Markets unless it had the approval of a majority of its’ stallholders. There are more than 300 traders at the Markets, the majority of whom had for many years traded Thursday, Friday, Saturday and Sunday (from 9am to 5pm). It was now proposed by Sydney Markets that there also be Wednesday trade.
2 The matter was obviously very urgent, because the first Wednesday trading day had been set for 14 October 2009.
3 A preliminary point of jurisdiction arose and I directed that submissions about that be in hand the following day, so that that issue could be separately decided. I delivered my reasons in favour of jurisdiction on 30 September 2009, and those reasons are published separately Wilson v Sydney Markets Limited [2009] NSWADT 256. After directions on 1 October 2009, still mindful of the urgency of the matter, I listed it for hearing on 26 October 2009, when evidence was heard and submissions commenced; submissions closed on 29 October 2009.
DECLARATIONS SOUGHT
4 The original Application was amended, and then there was a Further Amended Application, which sought:-
1. Declaration that s61 of the Retail Leases Act prevented the Respondent from changing the core trading hours “except with the approval in writing of the Lessees of a majority of the retail shops in the shopping centre”.
2. Declaration that the “promotion, advertising and introduction” of Wednesday trading without written approval of a majority of the retail shops is contrary to the Applicant’s Occupancy Agreement.
3. Order restraining the Respondent from:-
a. Promoting, advertising or introducing Wednesday trading until it had the requisite approval; and
b. Representing to Lessees that it is entitled to change the core trading hours absent the requisite approval.
4. Declaration that documents entitled “Rent free period – Early registration” were not “valid approvals in writing to changes in the core trading hours” within the meaning of the Retail Leases Act .
5. Restraining the Respondent from further distributing or seeking to obtain signatures on that form.
6. An order restraining Wednesday trading until there was evidence of majority approval by way of a proposed form to be completed by each stall holder.
7. Costs.
APPLICATION OF s 61
5 My interim decision held that the Occupancy Agreement signed by every stallholder is a Retail Shop Lease under the Retail Leases Act and that the enterprise conducted at Sydney Paddy’s Markets is a shopping centre for the purposes of the Act. As a result the Occupancy Agreement had imported into it, by s61 of the Act, a form of the following words:-
“(1) A lease of a retail shop is taken to include provision to the effect 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.”
EVIDENCE AND BACKGROUND
6 I had evidence by way of three Affidavits from the Applicant William Wilson dated 16 September 2009, 12 October 2009 and 23 October 2009 and from Anita Chung dated 23 October 2009, Lisa Huynh dated 23 October 2009 and Shao Juan Liang dated 19 October 2009. These latter three Affidavits sought to establish recent events at the Markets which, in view of the decision which I have resolved upon, are of only peripheral relevance. The oral evidence of Peter Hong Suwong, aimed at establishing the number of stalls trading on Friday 23 October 2009 and Sunday 25 October 2009, similarly, was ultimately of little relevance. The evidence on behalf of the Respondent was by way of four Affidavits by Gerry Darras dated 17 September 2009, 20 October 2009, 21 October 2009 and 23 October 2009, and from Kin Hong, Sam Slutrlani, Paul Berry, Merinda Cameron, Nabih Ghanimeh, Thao Pham and Suat Gopuz, all of whom are “Thursday, Friday, Saturday, Sunday” traders, all in identical terms to indicate that they wished to trade on Wednesdays. These, too, in view of my decision, were of little relevance.
7 Only Mr Wilson, Peter Hong Suwong and Mr Darras were cross examined.
8 It is clear from the evidence that the decision by Sydney Markets to promote Wednesday trading had arisen out of negotiations for the renewal of the Head Lease of the Markets premises. It was not in dispute that the existing Head Lease term would expire in December of 2018, and that Sydney Markets had an option of renewal. However Sydney Markets were engaged in negotiations to now establish a new term to run until the year 2039. A condition of that new agreement was that the markets would trade Wednesdays, so generating another $890,000.00 (approximately) per year in Sydney Market’s rental income.
9 Sydney Markets had, in its promotion to stallholders of the new trading day, circulated the document identified in the application as “Rent free period – Early registration”. For ease of reference I will refer to this as “the Document”. The terms of it are quite important and I set out its text in full:-
ADDITIONAL TRADING DAY - WEDNESDAY
COMMENCING 14 OCTOBER 2009
As previously advised, SML successfully negotiated the deferment of the additional Wednesday trading day (a requirement of our 30 year lease extension) from 1st July 2009 to Wednesday 14th October 2009 to coincide with the World Masters Games being held in Sydney, with up to 40,000 people visiting our City.
We are pleased to be able to offer our current Paddy’s Haymarket traders a RENT FREE period for Wednesday trading from 14th October until the end of November 2009 – that is 7 weeks rent free.
To take advantage of the rent free period offer you must register your commitment by completing the EARLY REGISTRATION below and returning it to SML by Monday 14th September 2009.
RETURN THE COMPLETED FORM:
1. Hand it in at the Market Office OR 2. Mail to PO Box 2, Sydney Markets 2129 OR
3. Fax to 9325 6300
YOU SHOULD BE AWARE OF THE FOLLOWING:
1. If you do not complete and return the appropriate Early Registration by 14th September you will not be eligible for the rent free incentive period.
2. Please note that if you do not trade on Wednesdays, from 14th October you will be required to remove your stock from the stand you occupy to allow for casual allocation on that day.
SML has committed to a comprehensive advertising campaign to support the introduction of Wednesday trading through press/media and internet exposure.
GERRY DARAS ROBYN LEES
Head of Special Projects Retail Markets Manager (For further enquiries phone 9325 6213)
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STANDHOLDER NAME:……………………………………………. Account No(s):…………………
I / WE WISH TO ADVISE SML WE WILL BE TRADING AT SYDNEY’S PADDY’S MARKETS AT HAYMARKET ON WEDNESDAYS COMMENCING 14 OCTOBER 2009 AND WOULD LIKE TO TAKE ADVANTAGE OF THE RENT-FREE PERIOD FOR WEDNESDAYS DURING OCTOBER AND NOVEMBER 2009.
*** PLEASE NOTE ***
FIRST PRIORITY FOR WEDNESDAY STAND ALLOCATION WILL BE GIVEN TO
CURRENT FOUR-DAY TRADERS, AS DETERMINED BY SML THROUGH A PRIORITY LISTING
I / WE CURRENTLY HOLD THE FOLLOWING PADDY’S HAYMARKET STAND(S):
THURSDAY: …………………………………………………………………………………………………………………………….
FRIDAY: …………………………………………………………………………………………………………………………….
SATURDAY: …………………………………………………………………………………………………………………………….
SUNDAY: …………………………………………………………………………………………………………………………….
SIGNED: ……………………………………………………………….. DATE: ……………………………………..
10 Part of Sydney Markets’ evidence before me sought to establish that the number of acceptances obtained by way of the Document amounted to more than 50%. The Applicant sought to establish the contrary by reference to the number of rejections and revocations of the Document. However the Applicant’s primary submission in this regard was that the Document did not amount to a proper election or “vote”.
THE OCCUPANCY AGREEMENT
11 It is appropriate to digress at this point to consider the unique nature of Sydney Paddy’s Markets trading arrangements. The Schedule to the Occupancy Agreement (which was not in evidence before me in the interim application, but is now in evidence) gives the trader an initial choice. He or she can elect to trade on any one day, or any number of the four days, or on all of the four days, by ticking relevant “boxes”. If that day trading pattern is accepted by Sydney Markets, then the trader (whatever the selected days) has to trade on those days from 9am to 5pm. The Sydney Markets decision to trade Wednesdays as well (in effect) added another “box” to the Schedule to be “ticked” by way of election to trade. It was Sydney Market’s view that the acceptance signature of the Document was to be regarded as a tick to the Wednesday trading box in the Schedule to the Occupancy Agreement.
12 I am satisfied that the above analysis follows simply from the plain words of the Occupancy Agreement and the Schedule. In any event, Mr Darras agreed in evidence that this interpretation of the Occupancy Agreement was the one which Sydney Markets worked to.
WAS THERE A TRUE CHOICE?
13 Mr Williams submitted on behalf of the Applicant that the choice apparently given by the Document was no choice at all to Mr Wilson because he, as a Thursday, Friday, Saturday and Sunday trader, had a right (for a small monthly “security” payment) to leave his stock on his stall on Monday, Tuesday and Wednesday. The Document makes it clear that this would change for those “four days traders” who elected not to trade on Wednesdays. I will return to this argument later.
14 Mr Williams also submitted that because the Document stated that Wednesday trading was to commence on 14 October 2009, it proposed a fait acomplit, and was not a proper election for the purposes of the words imported into the Occupancy Agreement by s61.
15 I agree; because it did not with any clarity state that the decision was for the stallholders to make, the Document did not amount to an indication of an actual choice. In my view, well drawn, the Document would have set out to give a plain English summary of the s61(1) words, and to underscore the fact that if 50% of the traders did not agree then there would be no obligation to trade on Wednesday, or that there would be “compulsory” Wednesday trade only if more than 50% of the traders wanted to do that. I find that the Document does not amount to an acceptance of the change in core trading hours in terms of the s61 regime.
16 At the hearing the parties agreed that it follows from my rejection of the Document that the evidence about actual number of stalls (or shops) occupied or trading on any day became irrelevant.
ANOTHER WAY OF ACHIEVING A MAJORITY OF SHOPS
17 It seems appropriate to note that the formal “vote” is not the only way in which the s61 words might operate.
18 A shopping centre Lessor might embark on a course of re-negotiating each Lease as it fell due, bringing in opening hours different to the former opening pattern. Obviously, for a time, the holders of “old” Leases might be open at different times to the “new” Lessees. There would come a point in time when there would be more than 50% of shops holding “new” Leases, with different hours of trade. These Lease documents would amount to an agreement in writing for the new hours. Once that majority had been achieved, these new hours would become the core trading hours which could then be imposed on the remaining old Leases (assuming that such old Leases gave the Lessor the right to change the trading hours in the first place).
STALL SITES OR SHOPS?
19 I further digress to indicate that in my view the evidence about the number of stall sites available in the Markets at any day is irrelevant. The Retail Leases Act applies because there are traders within the Markets whose business activity can be described as shops of the nature specified in the Schedule to the Act. The evidence establishes that many of these shops occupy more than one stall site, and in that case, for the purposes of the s61 words, I am satisfied that those multiple stall sites are the one shop, having the one vote. To interpret otherwise would make a mockery of the majority concept used in the section. The obvious example is a situation where a small centre built as 9 100 square metre shops has had 5 contiguous shops made connecting to conduct the one mini market, governed by five very similar Leases. If the majority was by each individual Lease, the mini market would rule the roost. The better interpretation is by way of reference to the business conducted as a shop, no matter that it occupies several identified areas, each of which might be physically described as a shop. The same applies mutatis mutandis to the Markets stall sites. Although not raised in argument, reference should be made to the decision of Tobias JA in Manly Council v Malouf (2004) 61 NSWLR 394. His Honour said:-
- “It seems to me that where a retail shop lease extends to a shop which is located partly in a building but also includes land associated with the building (such as an outdoor eating area), then the “premises” which are used wholly or predominantly for the carrying on of the relevant business will be constituted by the space used for that purpose both within and without the building. In other words, the “premises” constituting the “retail shop” will include the whole of the area devoted to the retail business….”
CAN THERE BE MORE THAN ONE SET OF CORE TRADING HOURS?
20 Mr Caruthers argued on behalf of Sydney Markets that whatever it had done, it fell outside of the words imported by s61 because there was no one set of core trading hours. Not all traders trade all four days, so for some traders, unlike Mr Wilson, who trades 9am to 5pm on those four days, the core trading hours are 9am to 5pm Saturdays and Sundays, or perhaps 9am-5pm Fridays, Saturdays and Sundays. This argument relies on the words in s61:- “the core trading hours” to require one set of core trading hours for the shopping centre. Mr Williams countered by suggesting that the words would just as easily encompass several sets of core trading hours. Thus, in the typical suburban mall, the food court might have core trading hours from 8am until 6pm, whilst the general retail shops in the same mall might be obliged to be open from 9am until 5pm, whilst the picture theatre had been set a regime from 11am to 11pm. The argument was that these three sets are still core trading hours. That raises the prospect of, in the example given, a food court occupant having a right to seek a vote from all of the shop owners in the mall, in relation to a proposal to change the hours for the general retail shops. It was proposed that this was perfectly proper because a change in the general retail hours might have a “knock on” effect for the food court hours (which were not proposed to be changed).
21 I agree; I can see nothing in the plain words of either s1(1) or s1(4) which would limit its operation to a universal set of hours for a centre. It follows, and I find, that Sydney Markets at Paddy’s Markets has a potential of a number of sets of core trading hours, depending on the combinations of days which it has allowed. Although I make no finding, I gained the impression from the evidence that there were in fact nine different combinations of days.
WAS THERE A PROPOSED CHANGE TO CORE TRADING HOURS?
22 Mr Caruthers’s most telling argument was the proposal that there had been no change in core trading hours at all, because no one was forced to trade on Wednesdays, they all had an initial election. That certainly would appear to contrast with the circumstance which might apply in a shopping mall, when, once core trading hours are changed, every trader is forced to adhere to the new hours (perhaps on pain of monetary penalty for failure to open). I note that the Paddy’s trading patterns are such that not all stores are occupied and trading on Thursdays and Fridays, although the vast majority are occupied on Saturdays and Sundays.
23 Mr Caruthers underscored this proposition by reference to the Occupancy Agreement which actually defines the premises not only by reference to the identification of the stall on the ground, but also by the days on which it trades. Thus stall 129 might be described as premises on Saturday and Sunday only, whilst stall 354 might be premises for Thursday, Friday, Saturday and Sunday. I accept that this may be a proper and valid distinction to be applied in respect of another trader, but it does not apply to the Applicant Mr Wilson. It was his evidence that one of the incentives in 1999 to trade on Thursdays (as well as Fridays, Saturdays and Sundays) was that, on payment of a small security fee, he could leave his stand complete, and fully stocked up. I accept that this right of occupancy was extended to every “four days” trader on payment of the security fee. Mr Wilson has display stands which, in effect, are cupboards which can be shut and locked, and I was shown photos of stalls configured into shops with metal security screens or blinds which fully enclosed them. It follows, I am satisfied, despite the unusual device of identifying the day as well as the area as “the premises”, that Mr Wilson has an exclusive right of occupation for all seven days and this has been so since 1999. The fact that he pays “high” rent identified by reference to his trading days, and a low one for his occupancy on non-trading days seems to me to make no difference. He has a right of occupation for value for the whole week and so, in terms of the definition found in s3 of the Retail Leases Act, he has a Retail Shop Lease for that whole period. I do not accept that the same defined area can be a retail shop for four days and something different for the other three days, just because it does not trade on those days, the stock and equipment being in situ the whole seven days.
24 In the final analysis, the effect of the s61 words, in the context of the Paddy’s Markets trading regime, means that four day traders like Mr Wilson, who have for more than ten years occupied their stands for the whole week, have a right in respect of the whole shopping centre in which they can individually seek to enforce. It should be noted that the s61 words imply a voting right for every shop:- “the Lessees of a majority of retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies”. The right created by these words applies to all shops in the centre, not just those which have the s61 words imported into their Lease.
25 An interesting and different consideration may apply for those traders who do not occupy all seven days, but actually demolish their display at the end of their trading period, and reassemble it at its next commencement. Such traders may on final analysis fall outside the s3 definition of Retail Shop Lease (although that seems unlikely in view of the extreme width of that definition). Alternatively, despite the fact that their Occupancy Agreement has the s61 words imported into it, the rights of these traders may be so far removed from the Wednesday change, that they have no standing to seek to enforce that contractual right. Mr Caruthers, accepting the suburban mall example, raised the absurdity of a retail shopkeeper seeking to prevent a change in the trading hours of the mall’s picture theatre. I accept that point and this is why I say that those who trade less than the full four days, and do not retain their stock in situ on the other three days, may be in a very different category. However, I am not concerned with those traders in this application. Their ability to make an application like Mr Wilson’s is a matter for another day.
26 I emphasize that, even if these “less than four day” traders have no standing to apply, it follows that s61 imports its words into their Occupancy Agreement thus giving them a right to vote. Even if my analysis is wrong, and these traders do not fall within the Retail Leases Act, and so do not have the s61 words imported into their particular Occupancy Agreement, then the s61 words still give them a right to vote.
27 It follows that Mr Wilson is entitled to a declaration that:-
1. his Occupancy Agreement is a Retail Shop Lease in terms of the Retail Leases Act .
2. Sydney Paddy’s Markets is a retail shopping centre in terms of the Retail Leases Act .
3. Section 61 of the Retail Leases Act imports its words into his Occupancy Agreement.
4. that the proposed Wednesday trading is a change in his core trading hours within the terms of those imported words.
5. that Sydney Markets Limited may not change the core trading hours of Paddy’s Markets to include Wednesday trading between 9am to 5pm until it has the approval in writing of a majority of the permanent stallholders trading at that venue.
28 The other declarations sought by Mr Wilson are aimed at regulating the process of voting, and the events leading up to it. The Act gives no guidance as to how that ought to be done, or whether it ought to be done at all. The broad powers given me by s72(d) and (3):-
“(2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.
(3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section.”
would certainly enable me to make such orders. In less urgent circumstances, it would be appropriate to leave it to the parties to hammer out the words of the declarations or directions which I might give. However, the obvious urgency of the situation indicates that I should seek to resolve the whole matter now.
29 On that basis I am prepared to make the further declaration:-
6. that the introduction or the advertising or promotion of Wednesday trading to stallholders in Paddy’s Haymarket should clearly indicate that such trading which involves permanent stallholders vacating their stands for Wednesday cannot take place until a majority of existing permanent traders vote to trade on that day by way of a secret ballot which is to be conducted at such times as the parties may agree, or if they cannot agree, as directed by me, on application of either party on 12 November 2009 at 2pm.
30 I am prepared to make these declarations because I am concerned that further Wednesday trading may establish a status quo quite contrary to the clear intent of the Retail Leases Act prescription. The first step in the process of changing the core trading hours is to gain a majority approval, and once that is in hand, enforced opening for trade at the new hours may commence.
31 Mr Wilson asks that I go further and in effect issue an injunction to prevent Sydney Markets advertising Wednesday trading to the public. I doubt that I have the power to issue an injunction, but I do have the power to make a declaration because of the extremely wide words of s72(1)(f)(iii). However I cannot see how I can issue such a wide edict at the suit of one Applicant whose harm is fully and properly addressed by a declaration that Sydney Markets Limited may not require him to remove his stock and equipment unless and until such time as Wednesday trading hours have been approved by a majority of permanent stallholders.
32 Of course there would be nothing to prevent Sydney Markets from promoting Wednesday trading as a “free” experiment if that was the intent of the Document, so long as traders like the Applicant, who occupy their stalls for 7 days are not forced to move their stock and vacate their shops. My declaration is not intended to prevent Sydney Markets promoting limited Wednesday trading to the public, or for that matter, promoting the new trading day to potential new stallholders.
33 If the parties wish me to settle an English version of the promotional document, then I give them leave to apply, for me to do that at directions on 12 November 2009 at 2pm.
34 As earlier indicated, the promotion of the voting should be in words which make it clear that the decision is that of the stallholders, and that should be given in a number of languages being Mandarin, Korean, Vietnamese, Indonesian, Arabic and Turkish.
35 A clear overriding philosophy of the Retail Leases Act is to seek to address the perceived power imbalance between the Lessor and the Lessee. Both parties have made allegations of intimidation by the other. The evidence in that regard has not been fully tested and considered, and I make no finding in that regard. However a neutral process must be found and that is one whereby no one associated with Sydney Markets Limited, nor anyone associated with Mr Wilson has any knowledge of the individual stallholder’s vote. The way of achieving that, it seems to me, is for the parties to jointly fund the cost of having a neutral person (the returning officer) conduct a secret ballot as indicated above, within the next two or three weeks, using a simple voting paper which states “Wednesday trading” and has two boxes to tick, one for “yes” and one for “no”. Of course the poll should be conducted on the basis of a list of known stallholders, one “vote” per shop each of whom are identified to the returning officer by driving licence or similar photo ID.
36 There are many traders who occupy more than one stall site to form a shop. The end result is that although there are more than 800 stall sites, there are only 337 traders who are described as permanent (whether trading for four days, or a lesser number). There are also, I understand, a number of casual stallholders who may occupy seasonally, or just occasionally.
37 I accept that there are 242 traders who trade four days from the same stands, although it is not clear that all of those leave their stands stocked for the other three days. There are also 33 “three day” traders who trade from permanent stands, but I have no indication whether they leave their stock (for a fee) on their four non-trading days. The others, being 62 in all, trade for some days only. All of these have a right to vote because of the clear effect of the s61 words.
38 Lastly, I have assumed in my declarations that no trader operates more than one shop. If that assumption is incorrect, the parties have leave to raise that with me on 12 November 2009, so that such multiple shop operators can be identified, and their number of votes indicated.
39 Lastly, on the question of costs, I have to say that the matter seems to me to have been extremely finely balanced; further, neither party appears to have “misbehaved” in the conduct of the matter. That being the case, the “default” position set by s88(1) of the Administrative Decisions Tribunal Act 1997 should apply. There will be no order for costs, unless the parties wish to argue the matter, in which case I will give directions on 12 November 2009.
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