SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131

SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131

The Appeal Panel refused leave in both appeals because SHH Ltd's rights were defined wholly by the Participation Agreement, the permitted use under that agreement did not fall within Schedule 1 to the Retail Leases Act 1994 (NSW), the agreement was not a retail shop lease, council validly terminated the sub-licence under cl 22.1 after the head licence was terminated, there was no requirement for mediation, and the Tribunal correctly rejected the s 71 penalty application for want of jurisdiction. However, the Tribunal erred in law by misconstruing the Deputy President's costs cap order: because no order was made on the council's cl 10 Sch 4 application, the $5000 cap remained applicable,...

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Appeals From Decisions of the New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning Termination of a Sub Licence, Alleged Retail Shop Lease Rights, Fair Trading Act Claim, and Costs / Appeal Panel Decision on Leave to Appeal, Extension of Time, and Appeal in Part
Outcome
Leave to appeal was refused in both appeals; AP 19/07450 was dismissed; AP 19/11824 was upheld in part only as to the costs cap, with time extended for commencement of that appeal and the costs order varied to cap costs at $5000.
Legal Topics
['sub Licence Termination' 'retail Shop Lease Definition' 'permitted Use Under Licence Agreement' 'mediation and Adjournment' 'leave to Appeal' 'extension of Time' 'costs Cap' 'false or Misleading Statements to Tribunal']
['leases and Tenancies' 'retail Leases' 'administrative Law' 'civil Procedure' 'costs'] ['sub Licence Termination' 'retail Shop Lease Definition' 'permitted Use Under Licence Agreement' 'mediation and Adjournment' 'leave to Appeal' 'extension of Time' 'costs Cap' 'false or Misleading Statements to Tribunal']

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Procedural Posture

Appeals From Decisions of the New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning Termination of a Sub Licence, Alleged Retail Shop Lease Rights, Fair Trading Act Claim, and Costs / Appeal Panel Decision on Leave to Appeal, Extension of Time, and Appeal in Part

Legal Issues

  1. 1 ["Whether the Participation Agreement was the whole agreement governing SHH Ltd's occupation of the licensed area." 'Whether the sub-licence constituted a retail shop lease under the Retail Leases Act 1994 (NSW).' 'Whether the permitted use or actual use determined whether the premises were a retail shop.' 'Whether the Tribunal had jurisdiction to impose a penalty under s 71 of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether council's termination of the Participation Agreement was retaliatory and invalid." 'Whether mediation was required before termination or litigation.' 'Whether leave to appeal should be granted under s 80(2)(b) and cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal erred by failing to apply the $5000 costs cap in the Fair Trading Act proceedings.']

Ratio Decidendi

The Appeal Panel refused leave in both appeals because SHH Ltd's rights were defined wholly by the Participation Agreement, the permitted use under that agreement did not fall within Schedule 1 to the Retail Leases Act 1994 (NSW), the agreement was not a retail shop lease, council validly terminated the sub-licence under cl 22.1 after the head licence was terminated, there was no requirement for mediation, and the Tribunal correctly rejected the s 71 penalty application for want of jurisdiction. However, the Tribunal erred in law by misconstruing the Deputy President's costs cap order: because no order was made on the council's cl 10 Sch 4 application, the $5000 cap remained applicable,...

Court Disposition

Leave to appeal was refused in both appeals; AP 19/07450 was dismissed; AP 19/11824 was upheld in part only as to the costs cap, with time extended for commencement of that appeal and the costs order varied to cap costs at $5000.

Orders

  • ['AP 19/07450: Leave to appeal the decision of the Tribunal in proceedings COM 18/44358 is refused.' 'AP 19/07450: The appeal is dismissed.' 'AP 19/11824: Extend the time for commencement of the appeal pursuant to section 41 of the New South Wales Civil and Administrative Tribunal Act to 8 March 2019.' 'AP 19/11824:...