Deas v Issa [2013] FCA 892

Deas v Issa [2013] FCA 892

On the uncontroversial facts, Mr Issa and Mr Krassaris were intending members of a proposed partnership to operate a pharmacy at the premises, and each owed fiduciary obligations in dealing with the landlord. Mr Krassaris executed the Letter of Intention to Lease not solely for himself but on behalf of the proposed partnership, so the right to occupy arising from it was, at least in equity, Mr Issa's as well as Mr Krassaris'. Because legal right to occupy in Sch 2 of the Rules includes rights recognised in equity, the Tribunal was correct to conclude that both respondents had a legal right to occupy the premises on and after 1 January 2012, and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
04 September 2013
Procedural Posture
Appeal on Questions of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / On Appeal From the Administrative Appeals Tribunal [2013] AATA 292; Judgment on Application
Outcome
The application was dismissed.
Legal Topics
['appeal From Administrative Appeals Tribunal' 'pharmaceutical Benefits Approval' 'legal Right to Occupy Premises' 'prospective Partnership Fiduciary Obligations' 'national Health Act Pharmacy Approval Rules']
['administrative Law'] ['appeal From Administrative Appeals Tribunal' 'pharmaceutical Benefits Approval' 'legal Right to Occupy Premises' 'prospective Partnership Fiduciary Obligations' 'national Health Act Pharmacy Approval Rules']

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Procedural Posture

Appeal on Questions of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / On Appeal From the Administrative Appeals Tribunal [2013] AATA 292; Judgment on Application

Legal Issues

  1. 1 ['Whether the Tribunal erred in law in holding that Bryon Issa had a legal right to occupy the proposed premises within Sch 2 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 on the day the application was made.' 'Whether a right requiring enforcement action against a co-applicant could amount to a legal right to occupy for the purposes of the Rules.' 'Whether the expression legal right to occupy includes rights recognised in equity.']

Ratio Decidendi

On the uncontroversial facts, Mr Issa and Mr Krassaris were intending members of a proposed partnership to operate a pharmacy at the premises, and each owed fiduciary obligations in dealing with the landlord. Mr Krassaris executed the Letter of Intention to Lease not solely for himself but on behalf of the proposed partnership, so the right to occupy arising from it was, at least in equity, Mr Issa's as well as Mr Krassaris'. Because legal right to occupy in Sch 2 of the Rules includes rights recognised in equity, the Tribunal was correct to conclude that both respondents had a legal right to occupy the premises on and after 1 January 2012, and the appeal was dismissed.

Court Disposition

The application was dismissed.

Orders

  • ['The application be dismissed.' 'The parties file and serve written submissions as to costs in accordance with the timetable: the respondents within 14 days; the applicants within a further 14 days; the respondents in reply, if necessary, within a further 7 days.' 'The stay arising under Order 1 and the injunction...