Malouf v Manly Council (No 2) [2002] NSWADT 200

Malouf v Manly Council (No 2) [2002] NSWADT 200

An agreement may be subject to the Retail Leases Act 1994 notwithstanding it was entered under s.125 of the Roads Act 1993 because the legislature did not explicitly exclude such agreements. The outdoor eating area in question constitutes 'premises' used wholly or predominantly for carrying out a Schedule 1 business (eating place) under the Retail Leases Act 1994, and therefore falls within the Act's definition of a 'retail shop'.

Parties
Applicant: Michael Malouf; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
14 October 2002
Procedural Posture
Jurisdiction / Preliminary Matter
Outcome
Orders made; matter to be relisted for Directions Hearing; orders later set aside by Appeal Panel (confirmed by Court of Appeal).
Legal Topics
Retail Leases, Licences, Statutory Interpretation, Premises Definition
Administrative Law Property Law Commercial Law Retail Leases Licences Statutory Interpretation Premises Definition

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Parties

Michael Malouf

Applicant

Manly Council

Respondent

Procedural Posture

Jurisdiction / Preliminary Matter

Legal Issues

  1. 1 Whether an agreement subject to section 125 of the Roads Act 1993 can be subject to the Retail Leases Act 1994
  2. 2 Whether the outdoor eating area constitutes 'premises' within the meaning of 'retail shop' in the Retail Leases Act 1994

Ratio Decidendi

An agreement may be subject to the Retail Leases Act 1994 notwithstanding it was entered under s.125 of the Roads Act 1993 because the legislature did not explicitly exclude such agreements. The outdoor eating area in question constitutes 'premises' used wholly or predominantly for carrying out a Schedule 1 business (eating place) under the Retail Leases Act 1994, and therefore falls within the Act's definition of a 'retail shop'.

Court Disposition

Orders made; matter to be relisted for Directions Hearing; orders later set aside by Appeal Panel (confirmed by Court of Appeal).

Orders

  • An agreement may be subject to the Retail Leases Act 1994 notwithstanding it was entered subject to section 125 of the Roads Act 1993.
  • The outdoor eating area which is the subject of this dispute is 'premises' within the meaning of the definition of a retail shop for the purposes of the Retail Leases Act 1994; those premises are used wholly or predominantly for the carrying on of one or more businesses specified in Schedule 1 of the Act.