Polymeris v Coopers Canteen Pty Limited [2018] NSWCATAP 6

Polymeris v Coopers Canteen Pty Limited [2018] NSWCATAP 6

Although the appellant established that he had been denied procedural fairness because the notice of hearing was posted only two days before the hearing and was not received before it, allowing the appeal would have little utility because subsequent events left both parties accepting that the lease was no longer on foot. In any event, the appellant did not establish a factual or legal basis that the lease had been terminated in March 2015: no s 129 notice had been served, and the appellant's later statements and conduct, including consenting to assignment of the registered lease, were inconsistent with the asserted termination. The declarations that the lease remained operative at the...

Jurisdiction
Australia
Judgment Date
05 January 2018
Procedural Posture
Appeal Concerning Retail Lease Orders Under the Retail Leases Act 1994 (nsw) / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 01 December 2016
Outcome
Appeal dismissed
Legal Topics
['hearing in Absence of a Party' 'notice of Hearing by Ordinary Post' 'procedural Fairness' 'retail Lease Termination' 'assignment of Lease' 'option to Renew' 'estoppel by Conduct' 'utility of Appeal']
['administrative Law' 'retail Leases' 'property Law' 'civil Procedure'] ['hearing in Absence of a Party' 'notice of Hearing by Ordinary Post' 'procedural Fairness' 'retail Lease Termination' 'assignment of Lease' 'option to Renew' 'estoppel by Conduct' 'utility of Appeal']

Case Brief

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Procedural Posture

Appeal Concerning Retail Lease Orders Under the Retail Leases Act 1994 (nsw) / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 01 December 2016

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness because the notice of hearing was posted only two days before the hearing and was not received before the hearing.' 'Whether the lease had been effectively terminated by the appellant in or about March 2015 or remained in full force and effect at the time of the Tribunal hearing on 1 December 2016.' "Whether, despite establishing denial of procedural fairness, the appeal should be allowed having regard to utility and the parties' subsequent acceptance that the lease was no longer on foot." "Whether the appellant's conduct and statements were inconsistent with the asserted termination of the lease and supported estoppel by conduct."]

Ratio Decidendi

Although the appellant established that he had been denied procedural fairness because the notice of hearing was posted only two days before the hearing and was not received before it, allowing the appeal would have little utility because subsequent events left both parties accepting that the lease was no longer on foot. In any event, the appellant did not establish a factual or legal basis that the lease had been terminated in March 2015: no s 129 notice had been served, and the appellant's later statements and conduct, including consenting to assignment of the registered lease, were inconsistent with the asserted termination. The declarations that the lease remained operative at the...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']