Sassine v McGlinn & Anor t/as Westland Produce (RLD) [2008] NSWADTAP 54

Sassine v McGlinn & Anor t/as Westland Produce (RLD) [2008] NSWADTAP 54

Order 1 had to be set aside because, if it purported finally to resolve jurisdiction, it was based on insufficient evidence and an inappropriate interlocutory approach to fact-finding; if it was intended to be provisional, it was not framed so as to make that limitation clear. The Tribunal should have determined jurisdiction on admissible evidence tendered after the parties had an explicit opportunity to do so, including any cross-examination sought, and should have applied the Moweno approach to the lease purpose, variation and estoppel issues.

Jurisdiction
Australia
Judgment Date
18 August 2008
Procedural Posture
Appeal Concerning Jurisdiction Under the Retail Leases Act 1994 / Appeal From the Tribunal's Preliminary Decision Declaring Jurisdiction
Outcome
Leave to appeal granted if required; appeal allowed; Order 1 of the Tribunal's decision set aside; proceedings remitted to the Tribunal for further hearing.
Legal Topics
['retail Shop Lease Jurisdiction' 'preliminary Jurisdiction Decision' 'evidence on Jurisdiction' 'procedural Fairness' 'actual Use and Permitted Use of Leased Premises']
['retail Leases' 'administrative Law' 'civil Procedure'] ['retail Shop Lease Jurisdiction' 'preliminary Jurisdiction Decision' 'evidence on Jurisdiction' 'procedural Fairness' 'actual Use and Permitted Use of Leased Premises']

Case Brief

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Procedural Posture

Appeal Concerning Jurisdiction Under the Retail Leases Act 1994 / Appeal From the Tribunal's Preliminary Decision Declaring Jurisdiction

Legal Issues

  1. 1 ["Whether the Tribunal erred in determining jurisdiction on the basis of the Lessees' affidavit evidence without a final evidentiary process." 'Whether Order 1 finally determined jurisdiction or was only provisional, and whether it was properly framed.' "Whether the Lease was a 'retail shop lease' within section 3 of the Retail Leases Act 1994 by reference to the permitted use, actual use, variation or estoppel." 'Whether leave to appeal was required under section 113(2A) of the Administrative Decisions Tribunal Act 1997.']

Ratio Decidendi

Order 1 had to be set aside because, if it purported finally to resolve jurisdiction, it was based on insufficient evidence and an inappropriate interlocutory approach to fact-finding; if it was intended to be provisional, it was not framed so as to make that limitation clear. The Tribunal should have determined jurisdiction on admissible evidence tendered after the parties had an explicit opportunity to do so, including any cross-examination sought, and should have applied the Moweno approach to the lease purpose, variation and estoppel issues.

Court Disposition

Leave to appeal granted if required; appeal allowed; Order 1 of the Tribunal's decision set aside; proceedings remitted to the Tribunal for further hearing.

Orders

  • ['Leave to appeal, if it is required under section 113(2A) of the Administrative Decisions Tribunal Act 1997, is granted.' 'The appeal is allowed.' "Order 1 of the Tribunal's decision dated 19 February 2008 is set aside." 'The proceedings are remitted to the Tribunal for further hearing.' 'The proceedings in the...