Thai Star Video Pty Limited v Walpole [2007] NSWADT 193

Thai Star Video Pty Limited v Walpole [2007] NSWADT 193

The occupied area was sufficiently defined and permanent to be premises, Ari Walpole adopted the bargain made by Pontip Walpole, and Thai Star Video Pty Limited had entered into possession under an oral agreement for use as a video library, giving rise to a retail shop lease under ss3 and 8 of the Retail Leases Act 1994. The agreement was for Thai Star to remain while Ari Walpole remained under the head lease, so s16 did not impose a different five year minimum term. The Retail Leases Act 1994 overrode the apparently conflicting operation of ss23B and 23D of the Conveyancing Act 1919, so the oral retail shop sublease was not terminable at will.

Jurisdiction
Australia
Judgment Date
27 August 2007
Procedural Posture
Claim for Declaration of Rights, Obligations and Liabilities Under a Lease / Principal Matter
Outcome
Declaration made that a retail shop lease exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor; costs application directions made, otherwise no order for costs.
Legal Topics
['oral Retail Shop Lease' 'sublease' 'declaration of Rights, Obligations and Liabilities' 'definition of Retail Shop Premises' 'agency and Adoption of Agreement' 'term of Statutory Lease' 'interaction Between Retail Leases Act 1994 and Conveyancing Act 1919']
['retail Leases' 'property Law'] ['oral Retail Shop Lease' 'sublease' 'declaration of Rights, Obligations and Liabilities' 'definition of Retail Shop Premises' 'agency and Adoption of Agreement' 'term of Statutory Lease' 'interaction Between Retail Leases Act 1994 and Conveyancing Act 1919']

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Procedural Posture

Claim for Declaration of Rights, Obligations and Liabilities Under a Lease / Principal Matter

Legal Issues

  1. 1 ['Whether the area occupied by Thai Star Video Pty Limited was sufficiently defined to be premises for the purposes of the Retail Leases Act 1994.' 'Whether Pontip Walpole had authority, or whether Ari Walpole adopted the bargain she struck, so as to bind Ari Walpole to the occupancy arrangement.' 'Whether an oral agreement and occupation gave rise to a retail shop lease under the Retail Leases Act 1994.' 'What term applied to the sublease, including whether s16 of the Retail Leases Act 1994 imposed a five year minimum term.' 'Whether ss23B and 23D of the Conveyancing Act 1919 rendered the oral lease terminable at will.']

Ratio Decidendi

The occupied area was sufficiently defined and permanent to be premises, Ari Walpole adopted the bargain made by Pontip Walpole, and Thai Star Video Pty Limited had entered into possession under an oral agreement for use as a video library, giving rise to a retail shop lease under ss3 and 8 of the Retail Leases Act 1994. The agreement was for Thai Star to remain while Ari Walpole remained under the head lease, so s16 did not impose a different five year minimum term. The Retail Leases Act 1994 overrode the apparently conflicting operation of ss23B and 23D of the Conveyancing Act 1919, so the oral retail shop sublease was not terminable at will.

Court Disposition

Declaration made that a retail shop lease exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor; costs application directions made, otherwise no order for costs.

Orders

  • ['Pursuant to s72(f)(iii) I declare that there exists between Thai Star Video Pty Limited as sub-lessee and Ari Walpole as sub-lessor a retail shop lease for a term to end of 15 July 2013, but which must come to an end of 15 July 2009 if Ari Walpole does not exercise his four year option for the head lease. However,...