Xilei Pty Ltd v Harina Company Limited and Lend Lease Real Estate Investments Limited Gebara [2016] NSWCATCD 33

Xilei Pty Ltd v Harina Company Limited and Lend Lease Real Estate Investments Limited Gebara [2016] NSWCATCD 33

The applicant had no standing to bring a retail tenancy claim against the respondents because the respondents did not grant, or agree to grant, the applicant a right of occupation of the shop for value. The lease was between the respondents and Jonamill, and the applicant's occupation and obligations arose from the Franchise Agreement with Jonamill. Direct dealings about rent, insurance and the bank guarantee were consistent with the Franchise Agreement and did not create an implied retail shop lease or direct contractual relationship between the applicant and the respondents.

Jurisdiction
Australia
Judgment Date
11 March 2016
Procedural Posture
Application for Original Decision; Retail Tenancy Claim / Final Determination After Hearing
Outcome
Application dismissed.
Legal Topics
['standing to Bring Retail Tenancy Claim' 'whether Franchise Occupancy Licence Was a Lease or Sublease' 'definition of Retail Shop Lease Under S3 of Retail Leases Act, 1994' 'effect of Dealings Between Lessor and Franchisee']
['retail Leases' 'property Law' 'franchising' 'consumer and Commercial'] ['standing to Bring Retail Tenancy Claim' 'whether Franchise Occupancy Licence Was a Lease or Sublease' 'definition of Retail Shop Lease Under S3 of Retail Leases Act, 1994' 'effect of Dealings Between Lessor and Franchisee']

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Procedural Posture

Application for Original Decision; Retail Tenancy Claim / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the applicant had standing under ss70 and 71 of the Retail Leases Act, 1994 to bring a retail tenancy claim against the respondents.' 'Whether there was an implied retail shop lease or direct contractual relationship between the applicant and the respondents.' "Whether the applicant's occupation under the Franchise Agreement was capable of creating a lease or sublease with the respondents."]

Ratio Decidendi

The applicant had no standing to bring a retail tenancy claim against the respondents because the respondents did not grant, or agree to grant, the applicant a right of occupation of the shop for value. The lease was between the respondents and Jonamill, and the applicant's occupation and obligations arose from the Franchise Agreement with Jonamill. Direct dealings about rent, insurance and the bank guarantee were consistent with the Franchise Agreement and did not create an implied retail shop lease or direct contractual relationship between the applicant and the respondents.

Court Disposition

Application dismissed.

Orders

  • ['The Application for Original Decision is dismissed as the applicant has no standing to bring a retail tenancy claim against the respondents.']