City Convenience Stores Pty Ltd v Third Lafite Pty Ltd

Introduction

1. The parties in these two appeal proceedings are City Convenience Stores Pty Ltd ("CCS") and Third Lafite Pty Ltd ("Third Lafite"). CCS occupied retail premises in George Street, Sydney owned by Third Lafite. By a decision of a single Member of the Tribunal, CCS was declared to have occupied the premises as licensee under a licence between 3 June 2013 and 30 May 2014 and thereafter was declared to have remained in and occupied the premises as a trespasser until 4 February 2015 when the owner repossessed them. An order was made by the Member for the payment of outstanding licence fees and an occupation fee quantified by way of damages for mesne profits. The amount said to be payable by CCS pursuant to this decision was $226,295.52.
2. An appeal was instituted by CCS from the decision of the single Member. In essence, it was the position of CCS that the Tribunal had no jurisdiction and power to determine the matters in dispute between the parties because the statutory basis for such jurisdiction, being the Retail Leases Act ("the Act") did not apply to the occupation by CCS of the premises. A cross-appeal was instituted by Third Lafite to enable it to assert, as a secondary position, that the Act applied and, if the original decision was set aside, as an alternative a retail lease existed which would properly form the basis of a claim for a monetary order for outstanding rent.
3. In a Decision published on 29 November 2016, City Convenience Stores Pty Ltd v Third Lafite Pty Ltd; Third Lafite Pty Ltd v City Convenience Stores Pty Ltd [2016] NSWCATAP 254 we upheld the appeal of CCS to the extent that we set aside the order for the payment of damages calculated by reference to mesne profits, finding that at all relevant times there existed between the parties a retail lease under the provisions of the Act. Accordingly, we allowed part of the appeal initiated by CCS, set aside the order for payment of monies, but dismissed the arguments advanced by CCS that a retail lease did not exist. Because we had not been provided with sufficient information to enable us to calculate the amount of outstanding rent under the retail lease which we had found to exist, the parties were directed to endeavour to reach agreement as to the calculation of that amount and to file minutes of short orders within 7 days thereafter. We reserved costs. We did not deal at all with any argument that interest was payable on the amount to be awarded.