This proceeding is referred to a further directions hearing before Senior Member Riegler at 9.30 am on 17 August 2012 at 55 King Street, Melbourne, Victoria, 3000 at which time the Tribunal will hear further submissions as to the form of the orders to be made, having regard to these Reasons, and make further orders as to the future conduct of the proceeding.

1. This proceeding comprises an application by the respondents for an order that the claims made by the applicants either be stayed or dismissed, insofar as they seek relief under the Retail Leases Act 2003 ('the RLA').

1. In late October 2003, the applicants purchased a Subway franchise business ('the Subway Business') operating from Shop 24 in a shopping centre food court located in Doncaster ('Shop 24'). The Subway Business was constituted by a franchise agreement dated 28 October 2003 ('the Franchise Agreement') between the applicants and the first respondent ('SSA'). In addition, the applicants entered into an ancillary agreement with the second respondent ('Subway') concerning the occupation of Shop 24. That agreement was constituted by a document entitled Licence # 26063 dated 3 November 2003 ('the Occupancy Agreement').
2. Subway is the Affiliate[1] of the first respondent, and is the entity that held a leasehold interest in Shop 24 pursuant to what parties have referred to as a head lease ('the Head Lease') between Subway and PT Limited and Perpetual Trustee Company Limited ('the Landlords').[2]
3. In October 2006, the applicants were advised that a new food court was going to be constructed in the shopping centre and that the area occupied by Shop 24 was to be converted into another use. Under the terms of the Head Lease, the Landlords had a right to redevelop the area comprising Shop 24 but were required to provide alternate premises to Subway.
4. According to the applicants, they were given two options. The first option was to close Shop 24 and wait until the new food court opened, following which they were to be given occupation of new premises within that new food court. The second option was to relocate the Subway Business into temporary premises while the new food court was being constructed and then relocate into the new food court following its completion.
5. The applicants chose the second option. To that end, on 17 November 2006, the applicants received document entitled Intent to Sub-Lease #26063, which referred to premises known as Shop 26. On 30 July 2007, a sublease for Shop 26 (executed by Subway) was forwarded to the applicants. The sublease for Shop 26 was expressed to end on 6 September 2008.
6. As it eventuated, the Subway Business was not relocated into the new food court after it was completed or at any time thereafter, with the result that the applicants claim that they have suffered loss and damage comprising lost revenue and other expenses associated with them being unable to operate the Subway Business within the new food court.
7. In 2009, Subway entered into a lease with the Landlords for premises known as Kiosk 103, following which Subway entered into an agreement with the applicants for them to occupy those premises. It is conceded by the respondents that the agreement to occupy Shop 26 and Kiosk 103 both constituted leasehold interests in favour of the applicants.
8. However, the respondents contend that the occupation of Shop 24 was pursuant to a license agreement and that no leasehold interest was ever granted to the applicants in respect of those premises. The issue whether the occupancy of Shop 24 constituted a leasehold interest is of critical significance in the current proceeding because the Franchise Agreement contains an arbitration clause that provides:

10. DISPUTE RESOLUTION. The parties want to settle all issues quickly, amicably, and in the most cost effective fashion. To accomplish these goals, the parties agree to the following provisions that will apply to resolve any dispute or claim arising out of or relating to this Agreement, or any other Franchise Agreement the parties have with each other (a "Dispute"):

c. The parties will arbitrate the Dispute if the mediation clause in Subparagraph 10.a. is not enforceable, or the parties do not settle the Dispute under the informal discussion and mediation procedures above, or the Dispute is one which this Agreement provides will be submitted directly to arbitration, except as provided in this Agreement. The arbitration will be held in accordance with the United Nations Commission on International Trade Regulations and Law (UNCITRAL) Arbitration Rules administered by an arbitration association, such as the American Arbitration Association or the Institute of Arbitrators and Mediators Australia, at a hearing to be held in Queensland.

1. Consequently, the respondents contend that the arbitration clause must be given effect to, having regard to s.10 of the Commercial Arbitration Act 2011, which states:

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

1. The respondents further contend that even if I was to hold that the occupancy of Shop 24 was pursuant to a leasehold interest, the arbitration clause should still be given effect to because s.10 of the Commercial Arbitration Act 2011 was pronounced after the commencement of the RLA, and by implication, thereby repeals the relevant section of the RLA which vests exclusive jurisdiction of retail tenancy disputes with the Tribunal.

1. The critical issues arising for determination in this proceeding are:
   • (a) Did the applicants occupy Shop 24 pursuant to a lease agreement or alternatively, was their occupancy pursuant to a license agreement?
   • (b) If the applicant's occupancy of retail premises was pursuant to a retail tenancy lease, does the RLA apply to vest exclusive jurisdiction with the Tribunal, in circumstances where the contractual relationship between the parties is governed by an arbitration clause?

Was the occupancy of Shop 24 pursuant to a leasehold interest?

1. As indicated above, the occupancy of Shop 24 was pursuant to the Occupancy Agreement. That document refers to the applicants as the licensee and Subway as the licensor.
2. Mr Moore of counsel, who appeared on behalf of the respondents, conceded, correctly in my view, that the labelling or categorisation that the parties have attributed to the agreement does not determine the relationship between the parties. Mr Catlin of counsel, who appeared in behalf of the applicants, drew my attention to a number of authorities relevant to this particular issue. The issue is best encapsulated in the much cited speech of Lord Templeton in Street v Mountford:

The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.[3]

1. Therefore, determining whether the Occupancy Agreement gives rise to a leasehold interest requires an examination of what, in substance, was granted, rather than what was produced in form.
2. It is common ground that exclusive possession is the touchstone of a leasehold interest: Radaich v Smith.[4] In Radaich, the High Court was concerned with the question whether an agreement granting occupation of premises used as refreshment rooms was a lease or a license. At page 220 of the judgment, Windeyer J stated:

What then is the fundamental right which a tenant has that distinguishes his position from that of the licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life, or lives. If he was, he is a tenant. And he cannot be other than a tenant because a legal right to exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right to exclusive possession of land for a term is not a tenant is simply to contradict the first proposition by the second.

1. Naturally, the question arises whether the Occupancy Agreement gave the applicants exclusive possession. Clause 8 of the Occupancy Agreement states:

Under this License the Licensor grants a mere Licence to the Licensee and nothing in this Licence will be taken to confer a right of exclusive possession on the Licensee. Without limitation the Licensor reserves the right to enter onto the premises at any time. The Licensor grants to the Licensee, subject to the terms and conditions of this Licence, only those rights which the Licensor has acquired under the Head Lease and nothing in this Licence will be taken to confer on the Licensee a right greater than any right which the Licensor has under the Head Lease.

1. Mr Moore submitted that the express words of the Occupancy Agreement were clear and militate against any finding that exclusive possession was ever granted. He referred to the Victorian Supreme Court of Appeal decision in KJRR Pty Ltd v Commissioner of State Revenue.[5] That case concerned facts similar to the present, albeit that the dispute related to the imposition of stamp duty, which depended on whether the occupancy agreement was to be construed as a lease, rather than a mere licence to occupy. Like the present case, KJRR concerned a franchise agreement between KJRR Pty Ltd as franchisee and Sportsco Pty Ltd as franchisor. Under the relevant franchise agreement, KJRR Pty Ltd obtained an exclusive right to use the business system and enjoy the benefits of a trademark on intellectual property owned by Sportsco Pty Ltd in retail premises located within a regional shopping centre. Under the franchise agreement, KJRR Pty Ltd was obligated to permit Sportsco Pty Ltd a certain degree of supervision in the conduct of its business. There was a requirement for minimum gross revenue of which Sportsco Pty Ltd was entitled to a share as a franchise fee, payable monthly. Under the franchise agreement, KJRR Pty Ltd was obligated to enter into a "property agreement" for Shop 6, of which Sportsco Pty Ltd was the lessee under a head lease.
2. The "property agreement" was expressed to be a license agreement. Clause 2.2 of that agreement stated:

This Licence shall confer no right of exclusive occupation of the premises to the Licensee and the Licensor may at any time and at all times from time to time exercise all of its rights as Lessee including (but without in any way limiting the generality of this provision) its rights to use, possess and enjoy the whole or any part of the Premises save only in so far as such rights shall prevent the operation of the Licence hereby granted.

1. In KJRR, the court found that the occupancy agreement was a licence agreement and did not constitute a leasehold interest.
2. However, there are features which distinguish the present case from what was considered in KJRR. In particular, there is a difference in the wording between the two clauses under consideration. In KJRR, the relevant clause gave the lessee (the franchisor) the right not only to enter the premises but also to use, possess and enjoy the whole or any part of the premises, subject to such rights not hindering the operation of the license granted. Moreover, clause 2.2 in KJRR reserved to the lessee all of its rights as lessee under the head lease. That goes much further than Clause 8 of the Occupancy Agreement. Clause 8 only gives a right to enter onto the Premises at any time. It does not give the right to possess and enjoy the whole of the premises, nor does it purport to reserve to Subway all of its rights under the Head Lease.
3. Mr Catlin argued that the ability to enter the premises at any time, given by Clause 8, was not inconsistent with there being a lease agreement in force. He referred me to an extract of the looseleaf text Australian Tenancy Practice and Precedents, wherein the learned authors state:

The existence of a right of entry onto the land does not necessarily displace the tenant's right to exclusive possession and turn the transaction into a license. Statutory powers of entry which do not destroy tenancy abound. It is beyond the scope of this work to list such powers which apply equally whether the occupier be freeholder or leaseholder.

The intention of the parties to confer or not to confer a right to exclusive possession is to be gleaned rather from the objective facts and surrounding circumstances than from the form of words that have been used...

The contract must be read as a whole though the individual clauses of it may point one way or the other. The covenant for quiet enjoyment will be indicative of the lease. In the search for the true intention even an express declaration that one or other relationship is intended is not conclusive. For the way that the parties described the legal relationship can never estop the courts from determining what that relationship really is...

The reservation of the right of entry to inspect or repair is not inconsistent with a lease. Neither is the fact that the tenant has exclusive possession only for a series of discrete periods, as in the case of a time sharing scheme. A covenant as to user does not mean that the grantee does not have exclusive possession and it makes no difference that the same end is attained by phrasing the covenant as a limitation whereby the tenant's power to use the premises is restricted.[6]

1. Clause 8 of the Occupancy Agreement gives Subway a right to enter Shop 24 at any time. That right is consistent with other clauses of the Occupancy Agreement and the Franchise Agreement, which gave Subway and SSA the ability to ensure that its intellectual property rights were not damaged, much in the same way as a lease agreement gives a landlord a right to enter the demised premises to ensure that the property is not damaged. Indeed, those rights of re-entry are not inconsistent with the rights of re-entry given to the Landlords against Subway under the Head Lease. In particular, the Head Lease contained several clauses which gave the Landlords a right to enter upon the demised premises:

(a) at all reasonable times enter the Premises and view its state of repair and may serve on the Lessee a notice in writing of any defect requiring it within a reasonable time to repair that defect in accordance with any term of this Lease,...

16.6 The Lessor may at all reasonable times and after reasonable notice (except in the case of an emergency) enter the Premises for any one or more the following purposes:

(a) complying with the terms of any law affecting the Premises and any notices served on the Lessor or Lessee by any statutory, licensing, municipal or other competent authority;

(b) carrying out any repairs, alterations or works of a structural nature;

(c) installing any services such as air-conditioning apparatus, automatic fire sprinklers, gas pipes, water pipes, drainage pipes, cables or electrical wiring;

(d) making any repairs which the Lessor may think necessary to the Premises;

(e) making any improvements or alterations to the adjoining premises or to the Centre which the Lessor may consider necessary;

(g) exercising the powers and authorities of the Lessor under this Lease.

1. Therefore, I do not accept that reserving a right of entry to Subway is determinative of there being a licence agreement. However, Clause 8 goes further than merely conferring a right of entry. It expressly states that nothing in the Occupancy Agreement is to be taken to confer a right of exclusive possession to the applicants.
2. In KJRR, clause 2.2 also stated that no right to exclusive possession was conferred to the franchisee. The court held that those words clearly deprived the franchisee of a right to exclusive possession. In other words, the terms of the agreement clearly expressed the intention of the parties that exclusive possession was not to be granted.
3. Consistent with the KJRR, Mr Moore submitted that the words of the Occupation Agreement were also clear. They expressly provided that exclusive possession was not granted. Therefore, he contended that there was no need to look further than the words of the Occupation Agreement itself in order to be satisfied that no lease had been created.
4. However, the applicants contend that those words are illusory and do not reflect what the parties actually intended or agreed upon. Mr Catlin submitted that consideration of the surrounding circumstances clearly indicates that the parties did not intend to create a mere licence. It seems to me that this really is the crux of the issue for determination; namely, whether Clause 8 is a pretence. If it is, then those words which purport to exclude occupation are meaningless and are to be ignored.
5. In KJRR it was also argued that Clause 2.2 was illusory and therefore a pretence because it was not possible for the lessee to enter, use and possess the whole of the premises without preventing the operation of the license hereby granted. The court rejected that argument. In particular, Chernov J stated:

Turning to the issue of whether clause 2.2 is illusory, it should be borne in mind that this provision is part of a bargain between the franchisor and the franchisee. There is no reason in principle why a prospective franchisor and a prospective franchisee cannot agree that as between themselves, the latter was not to have exclusive possession of the subject premises and that the franchisor would continue to enjoy them as owner or lessee, providing that enjoyment did not hinder the franchisee's conduct of its franchise business. There may be many sound commercial reasons why the franchisor would insist on this. One such reason may be that it would ease the franchisor's task of controlling and supervising the franchisee. The ultimate question is, of course, whether the effect of the franchisor's grant constituted the franchisee a licensee or a lessee of the franchisor (or, for present purposes, whether it had the effect of giving the franchisee exclusive possession of the premises)?[7]

1. In KJRR, the court found that there was no evidence to substantiate a finding that the rights of re-entry given to the lessee could not co-exist with the conduct of the business and therefore there was nothing to indicate that the clause should be considered illusory. In coming to that conclusion, the court accepted that it was appropriate to look at the surrounding circumstances in order to ascertain the true intention of the parties. In particular, Chernov J, referring to the House of Lords opinion in AG Securities v Vaughan; Antoniades v Villiers, [8] stated:

In that context their Lordships recognised that evidence of subsequent conduct which, they said, was not admissible on the question of construction of the contract, was nevertheless admissible on the issue of whether a particular provision of it was intended to have legal effect or was only a pretence. Lord Oliver said this, at 469:

"... though subsequent conduct is irrelevant as an aid to construction, it is certainly admissible as evidence on the question of whether the documents were or were not genuine documents giving effect to the parties' true intentions."

1. Consequently, it is necessary to look at the surrounding circumstances in order to ascertain whether Clause 8, at least insofar as it states that the applicants are not to be given a right of exclusive possession, reflects the parties' true intentions or is nothing more than a pretence.
2. In my view, the words in Clause 8 which purport to deny the applicants exclusive possession are problematic. I have formed this view based on a number of reasons, having regard to other provisions in the Occupancy Agreement and also the surrounding circumstances.
3. First, the correspondence between the parties prior to the exchange of the occupancy agreement is entirely inconsistent with that proposition. In particular, by letter dated 3 November 2003, Subway forwarded a copy of the signed Occupancy Agreement to the applicants. That covering letter stated:

Please find enclosed herewith a copy of your signed sub-lease document, which is for your safekeeping.

I would bring to your attention that it is valuable and could be required in future should you wish to Transfer or Surrender the Lease. Please ensure that it is stored securely.

1. On the face of that covering letter, it appears that Subway believed that what was being granted was a sublease and not a licence agreement.
2. Second, the term denying exclusive possession is inconsistent with other terms of the Occupancy Agreement. In particular, clause 16 of the Occupancy Agreement states:
   1. In addition to and without prejudice to the head Lease or the Franchise Agreement, the Licensor and the Licensee agree that if the Licensee breaches or is in breach of the Licence or the Franchise Agreement or the Franchise Agreement is terminated for any lawful reason whatsoever then and in any one or more of those events and notwithstanding that the Licensor may not have exercised any of its rights under this clause in respect of some previous breach or default by the Licensee whether of a like nature or not and notwithstanding the subsequent acceptance of rent the Licensor shall subject only to the provisions of any appropriate provincial property law/act be entitled forthwith or at any time thereafter to re-enter (forcibly if necessary) into and upon the Licensed premises or any part thereof and to have again repossess and enjoy the same thereupon the term granted by this Licence shall absolutely cease and determine and the Licensor shall be entitled to expel and remove the Licensee and all other occupiers without being guilty of tresspass and without prejudice to any action or other remedy which the Licensor has or could have for arrears of rent or breach of covenant or for damages as a result of any such event or default thereupon the Licensor shall be freed and discharged from any action, suit, claim or demand by or obligation to the Licensee under or by virtue of this Licence PROVIDED that in the case of a breach of any covenant or condition to which any appropriate provincial property law/act applies fourteen (14) days is hereby fixed as the time referred to in the said section within which this Licensee should remedy such breach if it is capable of remedy and to make reasonable compensation in money to the satisfaction of the Licensor for such breach. [emphasis added]
3. The words used in Clause 16 create somewhat of an anomaly. In particular, what is the purpose of having a clause giving Subway a right to repossess upon termination of the "licence agreement". If the Occupancy Agreement constituted a mere licence to occupy, no estate in land was ever granted. There is no need to include a term that the "licensor" will not be guilty of trespassing on re-entry. Similarly, the reference to the payment of rent is inconsistent with their being a license agreement, it being a word consonant with a lease agreement.
4. Further, the provision denying exclusive possession is also at odds with Clause 14 of the Occupancy Agreement which states:
   1. The Licensee covenants not at any time or times to mortgage, assign, transfer, sublet, part with or share possession or gift to any person, firm, company or corporation a licence to use or occupy the demised premises or any part thereof without the consent in writing of the Licensor and the Head-lessor had and obtained.[emphasis added]
5. Again, the words used in Clause 14 are curious. How can the applicants mortgage or sublet the premises if they themselves are not given any proprietary interest in the property. It makes no sense and is entirely inconsistent with a provision that the applicants are not to be given a leasehold interest.
6. Third, the words in Clause 8 denying exclusive possession are inconsistent with how the parties have, in fact, conducted themselves after the occupancy for Shop 24 was prematurely ended. Under the Occupation Agreement, occupation of Shop 24 was for a fixed term of 6 years less one day, with a further option. However, when the applicants moved into Shop 26 and then Kiosk 54, a tenancy agreement was entered into, notwithstanding that the words licensee and licensor were still used in the document granting occupation of Kiosk 54. Further, the respondents concede that occupancy of Shop 26 and Kiosk 54 was and is pursuant to leasehold agreements.
7. However, nothing changed in the running of the franchise business. It was and still is conducted under the same Franchise Agreement. The subsequent tenancy agreements still gave Subway rights of entry in order to monitor the business activities conducted by the applicants. The only thing that changed, in substance, was the location where the business was conducted. How then can it be said that if the subsequent agreements are considered to be tenancy agreements, the early agreement is not?
8. In my view, the factors outlined above indicate that the surrounding circumstances evidence that there never was an intention to create a licence agreement. Mr Moore pointed to the fact that under the terms of the Head Lease, Subway was not permitted to sublease Shop 24 but was only permitted to grant a licence to occupy. I do not consider that fact as determinative. Ultimately, the creation of a sublease may have constituted a breach of the Head Lease. However, that does not mean that a sublease was not created. Indeed, one may speculate that the words used in the Occupancy Agreement were so used so as to not give the appearance that a sublease had been created, when in fact it had.
9. Consequently, I find that on the balance of probabilities, the parties intended to create a sublease and that the words used in the Occupancy Agreement which purported to deny that intention are no more than a pretence. Contrary to what the court found in KJRR, I conclude that in the present case, there is evidence to substantiate such a finding.

Does the arbitration agreement take precedence of the jurisdiction of the Tribunal?

1. As indicated above, Mr Moore submitted that even if I determined that the Occupancy Agreement constituted a retail lease agreement, s.10 of the Commercial Arbitration Act 2011, still required the dispute to be referred to arbitration.
2. Mr Moore contended that the reference to a court in s.10 of the Commercial Arbitration Act 2011 includes the Tribunal. Regrettably, the word 'court' is not defined in the Commercial Arbitration Act 2011.
3. Consequently, he argued that as the Commercial Arbitration Act 2011 is a later Act, it implicitly repeals the earlier RLA, to the extent that there is inconsistency between those two Acts.
4. I accept that there is authority supporting the proposition that, in some cases, the reference to a 'court' will include the Tribunal. In particular, Nettle J made the following comments in Moorabool Shire Council v J & B Taitapanui concerning s.471B of the Corporations Act 2001 (Cth):

Authority makes plain that the reference to "court" in s.471B is not to be construed in a strict sense, but in a fashion that is broad enough to cover a proceeding in a tribunal such as the Victorian Civil and Administrative Tribunal: See the Recent Decision of Merkel J in Australian Liquor Hospitality and Miscellaneous Workers' Union v Homecare Transport Pty Ltd [3] and also earlier decisions concerned with the comparable provisions in of the Companies Code such as Revasal Pty Ltd (in Liq) [4] and Mowbray College and Exhibit Design and Construction Pty Ltd (in Liq) [5] [9]

1. However, Moorabool Shire Council and the many cases cited therein relate to the relevant provisions in the Corporations Act 2001. There are many other instances where it has been held that the Tribunal is not a 'court' in a strict sense.[10]
2. In the present case, the argument advanced by Mr Moore would have the effect of fundamentally altering Part 10 of the RLA. In particular, if Mr Moore was correct the dispute resolution provisions of the RLA, which contemplates that disputes are to be first mediated through the office of the Small Business Commissioner and if unsuccessful, then heard and determined by the Tribunal, could be displaced by the inclusion of an arbitration clause within a lease agreement. In my view, that could not have been the intention of Parliament.
3. There is no mention of the Tribunal or the RLA in the Commercial Arbitration Act 2011. There is no provision which expressly displaces the jurisdiction of the Tribunal. On the other hand, there are provisions within the Commercial Arbitration Act 2011 which expressly limit the jurisdiction of the Supreme Court. In my view, that is a factor which weighs against a finding that the word court includes the Tribunal.
4. Further, to construe the word court in the Commercial Arbitration Act 2011 to include the Tribunal would create a significant inconsistency between those two Acts.
5. Mr Moore, however, submitted that there would be no inconsistency because the Commercial Arbitration Act 2011, being a later Act of Parliament, would by implication repeal the consistent provisions of the RLA. I do not accept that submission. In Goodwin v Phillips,[11] Barton J adopted the following statement from Hardcastle on Statutory Law:

The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express flow from the necessary implication.

1. Further, in Saraswati v R,[12] Gaudron J stated the following;

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support the implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.[13]

1. In my view, limiting the word court in s.10 of the Commercial Arbitration Act 2011 to mean the Magistrates' Court, County Court or Supreme Court would not lead to any inconsistency between the two Acts and is a construction that is to be adopted, having regard to the authorities cited above. Accordingly, I do not accept the submission that the word court in the Commercial Arbitration Act 2011 includes the Tribunal. It simply cannot be the case that Parliament intended that the Commercial Arbitration Act 2011 and the RLA were to cover the same field of operation. The RLA is expressed elaborately and specifically details how retail tenancy disputes are to be resolved. The Commercial Arbitration Act 2010 says nothing about resolving retail tenancy disputes and is expressed in a general manner. In my view, that is another factor weighing against a finding that Parliament intended the provisions of the Commercial Arbitration Act 2011 to take precedence over the dispute resolution provisions of the RLA. Accordingly, I find that the word court in the Commercial Arbitration Act 2011 does not include the Tribunal and as a consequence, the Commercial Arbitration Act 2011 has no application in determining the present dispute.

[1] The term Affiliate is defined in the Franchise Agreement dated 28 October 2003 to mean a person or entity that directly or indirectly through one or more intermediatories controls, is controlled by or is under common control with, another person or entity.

[2] Paragraph 11 of the affidavit of Jocelyn Sain-Fryer dated 17 May 2012, paragraph 6 of the affidavit of Aaron Ireland sworn on 31 May 2012 and paragraph 6 (c) of the affidavit of George Konidaris sworn on 31 May 2012.

[3] [1985] UKHL 4; [1985] AC 809 at 819.

[4] [1959] HCA 45; (1959) 101 CLR 209.

[5] [1999] VSCA 2.

[6] Australian Tenancy Practice and Precedents (Redfern & Cassidy) at Page 1575-1576 (footnotes omitted).

[9] [2002] VSC 418 at [15]. Footnotes omitted. See also Brian Rochford Ltd (administrator appointed) v Textile Clothing and Footwear Union of New South Wales (1998) 47 NSWLR 47; Helm v Hansley Holdings Pty Ltd (in Liq) [1999] WASCA 71

[10] Director of Housing v Sudi [2011] VSCA 266 at [29], [155-157]; Kracke v Mental Health Review Board (2009) 29 VAR 1; ABY, ABZ v Patient Review Panel [2011] VCAT 905 at [26] per Justice Ross P; Rosengarten v American Airlines Inc [2011] VCAT 1535.

[11] [1908] HCA 55; (1908) 7 CLR 1 at 10

[12] [1991] HCA 21; (1991) 100 ALR 193