M H Investments Aust Pty Ltd v Hurstville City Council

NCAT Appeal Panel|2015-06-10

Background and decision below

M H Investments Aust Pty Ltd (the appellant) has appealed against a determination made by the Consumer and Commercial Division of the Tribunal (the CCD) on 5 March 2015. The Tribunal dismissed the appellant's claim, as a lessee, for relief against forfeiture and other orders under the Retail Leases Act 1994 (NSW) (the RL Act), against the Hurstville City Council (the respondent) as lessor.
The appellant made its application and applied for interim orders preventing the respondent from taking possession of the premises under s 72(4) and s 72AA(4) of the RL Act on 1 October 2014. In the application, which sought to raise both a retail tenancy claim and an unconscionable conduct claim, the appellant's solicitor wrote: The Applicant occupies the retail premises and conducts the business of a frozen yoghurt Franchise. The Applicant has been the sole occupant of the building and premises since construction of the building was completed in September of 2013. The Respondent has at all times been aware [of] the occupation of the premises by the Applicant. The Franchisor has gone into liquidation and the Respondent is seeking to terminate the occupation of the premises in 2 October 2014. The Respondent is in a Lease relationship with the Applicant although no lease document exists. The Applicant has been paying direct to the Respondent's agent since October 2013.
The application first came before the Tribunal on 10 October 2014 when the application was adjourned to a date to be fixed. Consent orders were made in accordance with terms reached by the parties. In short, those terms provided that: 1. The respondent undertook not to require the appellant to vacate the premises, or to otherwise interfere with the appellant's use and occupation of the premises in reliance on the Notice of Revocation of Consent given to Moochi Operations Pty Limited (in liquidation) (Moochi Operations), until further order. 2. That the issue of whether this Tribunal has jurisdiction to determine "the substantive relief claimed by the Applicant be determined as a preliminary issue." 3. That the respondent file and serve all material and submissions on the jurisdiction issue on or before 31 October 2014. 4. That the appellant file further material and submissions on the jurisdiction issue on or before 21 November 2014. 5. Registry to notify date of hearing of the jurisdictional issue.

The appeal and jurisdiction

Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that an appeal against an internally appealable decision may be made to an Appeal Panel. An internal appeal decision is defined in s 32 of the Act to include a general decision made by the Tribunal. A general decision is defined in s 29 of the Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. Also included in the definition of general jurisdiction in s 29 of the Act, is the jurisdiction of the Tribunal to make ancillary or interlocutory decisions, in proceedings for the exercise of the general jurisdiction.
In this case, the appellant sought to invoke the Tribunal's general jurisdiction by s 72 and s 72AA of the RL Act. However, the respondent contended that the circumstances were such that the Tribunal's jurisdiction was not thereby enlivened. By consent, the Tribunal held a preliminary hearing on the jurisdiction question. Further, the respondent contended that the appellant was not a lessee of the premises under a retail lease, which submission was accepted by the Tribunal. This is the decision appealed against by the appellant, and is better characterised as a decision that the appellant lacked standing to bring a claim under the RL Act, rather than that the Tribunal lacked jurisdiction to entertain such a claim.
The appellant contends this was an ancillary decision but, the respondent contends it is an interlocutory decision. In either case, the Appeal Panel has jurisdiction to determine the Appeal because it is a decision in the general jurisdiction of the Tribunal.
Nevertheless, the nature of the decision at first instance affects the nature of the Appeal. In the case of an interlocutory decision the appeal arises only with leave of the Appeal Panel, whereas if the decision at first instance is an ancillary decision, the appellant may appeal as of right on any question of law, or with leave of the Appeal Panel on any other ground (s 80(2) of the Act).

Ancillary or interlocutory decision

The definitions are found in s 4 of the Act. An "ancillary decision" is defined as: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings.
An "interlocutory decision" is relevantly defined as: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: … (h) the summary dismissal of proceedings, …
The reference to "summary dismissal", does not encompass a case where the question was a threshold question of jurisdiction or standing, which disposes of the matter in a final and reasoned way: see ALZ v WorkCover NSW [2015] NSWCATAP 138 at [27-30]. Not only does the definition of "ancillary decision" expressly refer to a jurisdictional question, but the determination of a jurisdictional question (or standing) has the legal effect of disposing of an applicant's right to approach the Tribunal for relief under the RL Act and is therefore not interlocutory. As noted by the High Court of Australia, the: usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. Re Luck (2003) 203 ALR 1 at 2.
The question directs attention to the legal effect of the judgment or order. Here, the Tribunal's decision had the legal effect of bringing the proceedings to a close. If the Act intended such an application to be treated as interlocutory we would have expected it to be expressly included in the definition of interlocutory decision. The requirement for leave to appeal an interlocutory decision ensures that substantive proceedings are not fragmented. Such issues do not arise here.
Accordingly, the Appeal Panel is satisfied that the decision at first instance is an ancillary decision and that an appeal lies as of right to the Appeal Panel on questions of law.

Notice of appeal

It is necessary that a question of law be stated with precision, as an appellant's right to appeal to the Appeal Panel arises from the question of law and is the subject matter of the appeal. This was recently highlighted by the Court of Appeal, in the context of an appeal from a decision of the Appeal Panel to the Supreme Court, in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378: see in particular Leeming JA at [3] and White J at [22]. The difficulties in formulating a question of law are referred to by Leeming JA at [4] to [6]. The importance of the question of law was the subject of extensive consideration by the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11] and [13].
The grounds of appeal were articulated in the appellant's submissions attached to the Notice of Appeal. At the heart of those submissions was the claim that the Tribunal erred in law by denying the appellant procedural fairness by determining the issue of standing, when that was not a jurisdictional issue to be determined by the Tribunal at the preliminary hearing, and when the parties had not filed evidence or made submissions in that regard. This raises a question of law.
At the end of the appeal hearing the appellant orally sought leave to amend its grounds of appeal by adding, as an additional ground of appeal, whether the Tribunal misconstrued key definitions of the RL Act in determining that there was no relationship of lessee and lessor between the appellant and the respondent with respect to a statutory lease of the premises under the RL Act, by limiting its analysis of whether the appellant was a party to a retail shop lease to whether or not there has been an assignment. Whilst this raises a question of law, the respondent opposed the granting of leave to amend.
In reality this was an issue that was fully argued in the course of the appeal hearing and did not take the respondent by surprise. The respondent was unable to point to any specific prejudice it may suffer if leave were granted, but submitted that granting leave may result in some future prejudice to the respondent.
The Appeal Panel determined to grant the appellant leave to rely on the additional ground of appeal being of the view that the question of law was manifest, and one of the real issues in the appeal. To not allow the amendment in the circumstances would be contrary to the guiding principle of the Act set out in s 42(1) that: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The respondent was not taken by surprise as the issue had been fully argued before the Appeal Panel. The respondent had not been able to identify any specific prejudice it would suffer were leave granted.

The notice of reply

In the reply to appeal, the respondent contended that the issue of the appellant's standing was properly before the Tribunal as a preliminary issue, together with the issue of whether the Roads Act 1993 (NSW) excluded the operation of the RL Act.
The notice of reply to appeal is in a standard form. Question 9 asks as follows: Do you support the original orders made by the Tribunal which the Appellant/s challenges for reasons other than those given by the Tribunal?
In effect, question 9 acts as a notice of contention and asks whether the respondent contends that the orders of the Tribunal are correct, but for reasons other than those relied upon by the Tribunal at first instance. In this case, the box marked "yes" was checked.
The grounds for supporting the order were set out at annexure B, which provided as follows: 9. Original orders 9.1 The respondent does not disagree with, nor seek to disturb, the order made by the Tribunal Member dismissing the application. 9.2 The respondent does, however, contend that in addition to the reasons given by the Tribunal Member for this order, and contrary to the Tribunal Member's findings in the Reasons that the Retail Leases Act 1994 is not excluded by sections 139 and 139A of the Roads Act 1993 and that the area covered by the premises occupied by the applicant and the subject of the Consent is not a "public road" within the meaning of the Roads Act 1993, the order should have been made for the reason that by virtue of sections 139 and 139A of the Roads Act 1993, the Retail Leases Act 1994 has no application to the Consent, with the result that the dispute the subject of the application is not a retail tenancy dispute and the Tribunal therefore does not have jurisdiction to hear and determine the substantive relief claimed by the applicant in the proceedings.
The decision under appeal was to the effect that the application should be dismissed because, whilst the RL Act was not excluded, the appellant had no standing to bring the application. The respondent contends for the same order, a dismissal of the appellant's claim, but on the additional ground that the Roads Act precluded operation of the RL Act.
That contention has been made in accordance with NCAT Guideline 1- Internal Appeals para 44 of which states: 44. Where a respondent wants to argue that the orders appealed against were correct but for reasons different from those given by the Tribunal, the respondent should complete the section in the Reply to Appeal which requires the respondent to state whether there are any other reasons why the Tribunal's orders were correctly made.
Section 81 of the Act identifies the orders that an Appeal Panel may make in respect of internal appeals. Relevantly, s 81(1) provides: … the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including … … (b) the decision under appeal to be confirmed, affirmed or varied …
In exercising its functions, the Appeal Panel may exercise all the functions conferred on the Tribunal at first instance, when varying or making a decision in substitution of the first instance decision: s 81(2) of the Act.
The Appeal Panel has decided that, in order to comply with the guiding principle in s 36(1) of the Act and to act without undue regard to technicalities, it is appropriate, on the appeal, to determine whether the appeal should be dismissed for the reason suggested by the respondent.
The appellant accepted that this course was open to the Appeal Panel.
It is convenient to first deal with the issues raised on appeal by the appellant, and then to the deal with the contentions raised in the respondent's reply.

Was the issue of the appellant's standing a matter to be determined at the Tribunal's preliminary hearing?

The "jurisdictional issue" to be determined at the preliminary hearing was not identified in the orders which the Tribunal made on 10 November 2014. Those orders put in place a timetable leading to a preliminary hearing, which required the respondent - as the party asserting that the Tribunal did not have jurisdiction - to file its evidence and submissions first. In submissions filed on 10 November 2014 the respondent argued, in summary: 1. That it had granted a consent to Moochi Operations, under s 139A of the Roads Act, which gave Moochi Operations the right to occupy and trade from the site, which is on a public road, subject to the terms and conditions set out in the consent. This was not an agreement or lease arrangement with Moochi Operations, but the exercise by the respondent of a statutory power under s 139A of the Roads Act to grant such a consent. 2. That in Manly Council v Malouf trading as Fusion Point [2004] NSWCA 299 the Court of Appeal found that a Council's only powers to approve or consent to the use of a part of a public road are those found in s 125 and 139A of the Roads Act. There is no other power under which a Council can grant a lease or otherwise permit private use or occupation of any part of a private road. 3. That the party to whom the consent was granted was not the appellant, but Moochi Operations, which acknowledged that the consent did not confer on it any right as a tenant or create a relationship of landlord and tenant. 4. Only the respondent could transfer the right created for Moochi Operations under the consent to a third party so that, 'even if the Consent could be said to be a retail shop lease, as that term is defined in the RL Act, the applicant was not at any time a party to such a lease.'
In those submissions the respondent clearly set out the issues it was seeking to raise at the preliminary hearing. They were: 1. Whether because the consent was made under s 139A the Roads Act with respect to part of a public road the operation of the RL Act was thereby excluded; and 2. If there was a lease within the meaning of the RL Act, whether the appellant was a party to that lease.
In its submission in reply on jurisdiction the appellant submitted: 1. That there was no evidence that the premises are located on a public road; 2. That the premises are a retail shop; and, 3. That all the components necessary for a retail lease to exist between the appellant and the respondent with respect to the premises were present, namely - (i) The grantor of the right to the occupation of the premises by the Applicant is the owner of the land in fee simple; (ii) The owner of the land has approved the occupation of the land by the Applicant; (iii) The Applicant has occupied the land with the consent of the owner of the land; (iv) The owner of the land has granted this consent on terms and conditions which terms and conditions have been satisfied by the Applicant; (v) The terms and conditions include the use of the property as retail use, which is not in dispute; (vi) The terms and conditions including the payment of money in exchange for the right to occupy the premises; (vii) The premises have been specifically described and particularised as a condition of the Consent by the owner of the land; (viii) The above arrangements are in writing.
The respondent filed supplementary submissions on jurisdiction on 24 February 2015 which principally addressed the issue as to whether the premises are situated on a public road.
In the Appeal Panel's view the submission made by the parties clearly delineated the issues to be determined at the preliminary hearing under the rubric of "jurisdictional issues." They were: 1. Whether the premises are located on a public road? 2. If so, whether the fact that the consent was granted under s 139A of the Roads Act necessarily excluded the application of the RL Act? 3. Whether there was a retail lease with respect to the premises? 4. If there was a retail lease with respect to the premises, whether the appellant was a party to that lease (i.e. a lessee)?
That last question is not one going to the Tribunal's jurisdiction under the RL Act, but goes to the appellant's standing to make an application under the RL Act as a lessee. It was an issue which both parties had addressed in their submissions to the Tribunal relating to the jurisdictional issue, and had filed materials on.
In the Appeal Panel's view the issue of the appellant's standing was clearly among the 'jurisdictional issues' to be determined by the Tribunal at the preliminary hearing. The issues to be determined were delineated in the parties' submissions. The Tribunal did not deny the appellant procedural fairness by determining that issue at the preliminary hearing. This ground of appeal therefore fails.

Did the Tribunal misapply the RL Act by limiting its analysis of whether the appellant is a party to the retail shop lease to whether or not there has been an assignment?

In reaching its conclusion that the appellant is not a lessee of the premises the Tribunal accepted that the consent between Moochi Operations and the respondent embodied an agreement to which the RL Act applied. The Tribunal did not accept that there was evidence of the creation of an implied shop lease agreement between the appellant and the respondent, and found that Moochi had not assigned its rights under the consent to the appellant.
The appellant's application to the Tribunal was framed as both a retail tenancy claim and an unconscionable conduct claim under the RL Act. Section 71 is concerned with retail tenancy claims. It relevantly provides: 71 Lodging of retail tenancy claims with Tribunal (1) A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim.
Section 70 defines retail tenancy claim to mean - retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), (ii) a claim for relief from payment of a specified sum of money, (iii) a claim for the doing of specified work or the provision of specified services, (iv) a claim for the surrender of possession of specified premises, (v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, (vi) a claim for relief against forfeiture, (vii) a claim regarding the rectification of the lease, (viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations, (ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease, (x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E, (xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond, (b) an application for the appointment by the Tribunal of a specialist retail valuer under section 19 or 31, (c) an application for the appointment by the Tribunal of two specialist retail valuers under section 32A, (d) an application under section 19 (3) or 31 (3), or under those provisions as applied by section 32A, by a specialist retail valuer, (e) a claim against a specialist retail valuer under section 19A (3) or 31A (3), or under those provisions as applied by section 32A, for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information.
In the present case the parties agree that the premises are a retail shop within the meaning of the Act. Retail shop lease is defined in s 4: retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing. Note. Sections 6, 6A and 84B limit the retail shop leases to which this Act applies. shop lease substantial injustice defined in s 4 of the Act .
Lessee, lessor and party are also defined in s 4 lessee means the person who has the right to occupy a retail shop under a retail shop lease, and includes a sublessee and a lessee's or sublessee's heirs, executors, administrators and assigns lessor means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes a sublessor and a lessor's or sublessor's heirs, executors, administrators and assigns party means the lessor or the lessee under a retail shop lease.
In order to lodge a retail tenancy dispute therefore one must be a lessor or lessee, or a former lessee or lessor, of a retail shop under a past or present retail shop lease. The same restrictions apply to those who may bring an unconscionable conduct claim under s 71A which relevantly provides: (1) A lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim.
The distinction between a retail tenancy claim and an unconscionable conduct claim is that the former is with respect to the lease, while an unconscionable conduct claim is concerned with conduct of the parties in connection with a lease which is unconscionable and is prohibited by s 62B of the Act.
In the present case the Tribunal was satisfied that Moochi Operations had not assigned its interest under the lease to the appellant, and that the appellant was therefore not a lessee. The Tribunal also considered that the evidence that all of the rent had been paid to the respondent by the appellant, rather than Moochi Operations, was not evidence of an acceptance by the respondent of the appellant as lessee. It therefore found that the appellant did not have standing to bring its claim.
In reaching that conclusion, the Tribunal appears to have applied an unduly narrow construction of the expression "lessee" under the RL Act, or more particularly, misapprehended the circumstances from which a lease may be implied. Whilst accepting that one may be a lessee under an implied lease agreement, the Tribunal appears to have focussed upon whether there was conduct (i.e., overt acts) of the respondent from which to infer that the respondent had agreed to the appellant being its lessee. The Tribunal did not have regard to or consider whether all the circumstances, taken together, relating to the appellant's occupation of the premises (apparently accepted to be retail shop premises, at [26]), as outlined in its submissions on jurisdiction (see para 44 above) and identified in its Points of Claim, formed a proper basis for inferring that a statutory lease had arisen: i.e., that the appellant and the respondent were parties to an implied retail shop lease of the premises, or whether the appellant was a sub-lessee of Moochi's with respect to the premises.
The factors pointed to by the appellant included not only the payment of rent (which the Tribunal held, at [29] bullet point 3, was insufficient to imply a lease) but also its payment for the construction of the kiosk and importantly its occupation of the premises (matters accepted by the Tribunal (at [1], [2] and [16]). If either the appellant was a sub-lessee or an implied lessee, then the appellant would have had standing to bring the application before the Tribunal, being a lessee within the meaning of s 3 of the RL Act. The Tribunal held (at [29] bullet point 3) that: "Mere acceptance of payment of rent and other outgoings directly from the applicant does not of itself constitute any such agreement or acceptance." However, this was not a case of "mere" direct payment of rent and outgoings. The Tribunal's failure to consider the other aspects relied upon by the appellant in the context of the RL Act establishes an error of law, being the misconstruction of the R L Act. Another perspective is that the error is in ignoring a central submission of the appellant, that occupation of retail shop premises coupled to payment of rent direct to the putative lessor constitutes them as a retail shop lessee.
For the reason that the Tribunal did not consider those matters, it did not make findings of fact necessary to properly determine them. For example, whilst it determined that the appellant was occupying the premises pursuant to its agreement with the franchisor (at [16]), it did not consider whether the respondent and Moochi Operations knew of, and consented to or objected to, that occupation, and if so, on what terms or basis. These are all issues to which the Tribunal should have had regard in making its determination. It did not do so. In order for the issues to be properly determined, the application will have to be remitted to the CCD to be heard and determined again.

The Public Road Issue

The Tribunal determined that - … it has not been established on the balance of probabilities that the subject area covered by the premises is a "public road" under the Act.
The Tribunal did not disclose the reasoning that led it to reach that conclusion, or discuss the evidence or submissions before it relating to the issue of whether or not the premises are located on a public road. This was for the reason that the Tribunal held that the RL Act was not excluded where the premises were situated on a public road. Nevertheless, this was an issue that was crucial to the jurisdictional argument being raised by the respondent, that because the premises are located on a public road, the Roads Act excluded the operation of the RL Act. As such it was an issue that the member in giving his reasons was required to engage with.
In Mitchell v Cullingral Pty Ltd, Campbell JA [2012] NSWCA 389 gave the lead judgment (with which Allsop P and McColl JA agreed). He stated the requirements for proper reasons for judgment in the following terms: 116 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58].
The Tribunal's reasons for finding that it was not satisfied that the premises were located on a public road were inadequate. This is an error of law.
The importance of whether or not the premises are located on a public road flows from the decision of the Court of Appeal in Manly Council v Malouf [2004] NSWCA 299 which concerned an approval to occupy a footpath for dining purposes granted to a restaurant under s 125 of the Roads Act. Part of the approval was over a public road and part was not. Malouf sought the protection of the RL Act claiming the approval constituted a retail lease. During the course of his judgment, Tobias JA, with whom Mason P agreed, noted that s 125 was similar to s 139A (under which the respondent issued the consent to Moochi Operations). Tobias JA considered the effect of the Roads Act provisions and their interaction with the RL Act. 65. Except to the limited extent permitted by Division 2 of Part 10 of the Roads Act, in my opinion a council has no power to grant a lease or licence to permit the private use or occupation of any part of a public road of which it is the roads authority. The Roads Act exclusively governs its powers with respect to such roads: see s 7(5). Although it is empowered to grant an approval or consent pursuant and subject to s 125 and s 139A respectively, that is the extent of its power to grant rights of private occupation of any part of a public road. 62 It is thus strictly unnecessary to consider the application of the maxim generalia specialibus non derogant. It was submitted that the maxim would apply in the present case upon the basis that the RL Act contained general provisions whereas s 125 of the Roads Act contained a special provision dealing with a use of a footway of a public road in particular circumstances. It is well-known that the approach adopted by the courts to resolve such conflicts was stated succinctly by O'Connor J in Goodwin v Phillips (1908) 7 CLR 1 at 14: "Where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision and the general provision, insofar as it is inconsistent with the special provision, must be deemed not to apply." 63 Again, the rationale underlying this approach was stated by Barton A-CJ in Maybury v Ploughman (1913) 16 CLR 468 at 473-4 in these terms: "The judgment under appeal turns upon the application of the principle involved in the maxim generalia specialibus non derogant to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision …I wish to quote a passage from the judgment of Wood V-C in Fitzgerald v Champneys 2 J&H 31 at 54, quoted by Stirling J in Re Smith's Estate; Clements v Ward (1887) 35 Ch D 589 at 595. 'The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.' " 64 The relevant principles were restated by Kirby P, with whom Clarke and Handley JJA agreed, in Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 293-294. In particular, the President noted (at 294 C-D) that: "[I]n the absence of express repeal of earlier or other statutory provisions, it will normally be presumed that Parliament intended the two statutes to work harmoniously together so that each operates within its respective field of application." 65 In my opinion, the maxim would apply in the present case. Section 125 of the Roads Act applies only to, firstly, part of a footway of a public road the fee simple of which is vested in a Council; secondly, where a person conducts a restaurant adjacent to the footway; and thirdly, to the use of the relevant part of the footway for the purposes of that same restaurant. It is indeed a special case. On the other hand, the RL Act applies to all "retail shop leases" as defined in circumstances where, firstly, it is not confined to a "retail shop" located upon part of the footway of a public road and, secondly, it is not confined to the business of a restaurant but extends, as Schedule 1 to the RL Act makes clear, to over 130 different retail businesses of which a restaurant is but one. It therefore follows that for this additional reason, an approval granted pursuant to s 125 is unaffected by the RL Act which has no application to it with the consequences in the present case to which I have referred.
The rights and obligations of Malouf and Manly Council, so far as the public road was concerned, were governed exclusively by the approval there in question and not by the RL Act. So far as the use of the public road was concerned, no issue arose at all under the RL Act: see too at [57] and [61] of Manly Council v Malouf.
The respondent submitted that similar reasoning applied to a consent granted under s 139A, and that Manly Council v Malouf is authority for the proposition that the RL Act does not apply to the grant of approval under s 125 of the Roads Act or a grant of consent under s 139A of that Act. The Appeal Panel agrees with that submission.
This highlights the importance of the Tribunal's finding that the premises were not located on a public road. If it had found to the contrary, the Tribunal would have been bound to dismiss the appellant's claim for a want of jurisdiction.
There was a considerable body of evidence before the Tribunal with respect to the issue of whether or not the premises are located on a public road. That evidence consisted of: 1. An affidavit from Jeffrey Tripp, the Director - Administration of the respondent, dated 4 November 2014, in which he asserted, with respect to the consent, that - … the Consent was granted by HCC, in its capacity as a roads authority, pursuant to sections 139 and 139A of the Roads Act …. Memorial Square is an unmade portion of Forrest Road, Hurstville, which is a public road, as that term is defined in the Roads Act…. 1. A further affidavit from Mr Tripp dated 24 February 2015 in which he provided a much more detailed history of the land on which the premises are located, including evidence relating to its ownership and use over the years. This affidavit was prepared after the appellant's submissions took issue with the respondent's assertion that the premises are located on a public road.
There was also before the Tribunal detailed submissions going to the issue of whether the premises are situated on a public road within the meaning of the Roads Act, and as to the effect of the Roads Act if it is. Much of those submissions relating to that first aspect (whether the premises are situated on a public road) focussed on the relevance and effect of the decision of the Court of Appeal in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 (Stojan) which was concerned with what constitutes a public road.
At the commencement of the hearing of the Appeal the Appeal Panel drew the attention of the parties to the recent decision of the Court of Appeal in Cavric v Willoughby City Council [2015] NSWCA 182 (Carvic). In Carvic the decision in Stojan was not followed. The reasoning in Stojan, especially with respect to the operation of s 245 of the Roads Act, was substantially rejected by the Court of Appeal because the evidentiary nature of that provision had not been fully considered in Stojan.
Both the appellant and the respondent accepted that the law to be applied by the Appeal Panel when considering whether the premises are located on a public road is that stated in Cavric.
The Dictionary to the Roads Act defines public road thus: public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act.
In Carvic, at [6], Basten JA explained - There are a number of ways in which a road may be "opened or dedicated" as, or "declared to be", a public road. In particular, a road may be opened pursuant to one of the methods specified in Part 2 of the Roads Act, which include registration of a plan of subdivision, publication of a notice in the Gazette dedicating land held as a public road and proclamation by the Governor dedicating the land as a public road. Although the language used and the manner of exercising the statutory powers have varied over the last century, similar provisions may be found in previous Acts. The Roads Act also provides that "[a]ny road that, immediately before the relevant commencement, was a public road is taken to be a public road within the meaning of this Act."
In the present case, the respondent concedes that there was no evidence before the Tribunal that the land on which the premises are located has been opened as a public road by means of registration of a plan of subdivision in which it is shown as a public road, by notice in the Gazette declaring it a public road, or by a proclamation of the Governor declaring it as a public road. There was also no evidence that it had been opened or dedicated as a public road under any other Act, whether before or after the commencement of the Roads Act.
As Basten JA observed in Carvic, clause 15 of Schedule 2 of the Roads Act provides that any road, "that immediately before the relevant commencement, was a public road is taken to be a public road within the meaning of this Act." The respondent relied on the evidence of Mr Tripp, together with the provisions of s 249 to demonstrate that the land on which the premises are located was a public road before the commencement of the Roads Act.
Section 249 of the Roads Act provides - (1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road. (2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown etc).
In Cavric Basten JA described this as an evidentiary provision which, at [9] … does not provide its own test of what constitutes a public road. Thus, if an area may properly be described as "part of a thoroughfare in the nature of a road" and shown to be "so used by the public", it does not thereby constitute a public road. Rather those qualities may constitute evidence of a public road having been opened, dedicated or declared where there is otherwise no formal evidence of those steps having been taken.
His Honour reviewed the law relating to the opening and dedication of public roads in NSW. He noted at [14] that - Since 1906 a public road can only be opened in New South Wales when it is approved by the local council" Newington v Windeyer (1985) 3 NSWLR 555 at 558 per McHugh JA
Before 1906 evidence of both use and dedication as a public road is required to demonstrate the common law making of a public road. In Newington v Windeyer (1985) 3 NSWLR 555 at 558 Mc Hugh JA explained - At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn …. Dedication to the public may also be presumed from uninterrupted user of the road by the public …. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.
The evidence relied on by the respondent relating to land in issue demonstrates that, among other things: 1. It is situated in what is now known as Memorial Square and was formerly known as Railway Square, 2. It was originally acquired for railway purposes by the Railway Commissioners for NSW in two registered transactions that took place in November 1883 and April 1884. 3. On 18 May 1917 the Hurstville Propeller reported the unveiling of a temporary honour board in Railway Square. 4. The land was converted to "Real Property Act Title by Primary Application No. 22626 in accordance with Deposited Plan 72626." That plan is dated February 1920. 5. A photograph, which the respondent dates to May 1922, shows vehicles parked and members of the public walking on the land. There is no indication of any structure being built on the site, which (given (6) below) casts some doubt on the date. 6. On 2 June 1922 an article in the Hurstville Propeller reported the opening of a memorial on Railways Square to honour the war dead. The article includes a photograph of the large memorial on the site. 7. On 1 May 1924 the respondent and the Trustees of the Hurstville Soldiers Sailors and Nurses War Memorial Fund entered into a deed which recited that Council had acquired from the Railway Commissioners the site occupied by the War Memorial, and that the Trustees had erected the War Memorial on the land. The Deed transferred the War Memorial to the respondent, and the respondent agreed to care for and maintain the War Memorial. 8. Photographs of the land commence in 1922. Early photographs show vehicles and the public walking on part of the site, but since the erection of the War Memorial it and its surrounds are shown free of vehicles (albeit a pedestrian thoroughfare may constitute a road).
There is no evidence that prior to 1906 the land was used and dedicated as a public road. Indeed, the evidence demonstrates that in the 1880's the land was acquired by the Railway Commissioners for railway purposes.
Since 1906, while there is some limited evidence that the land has been used as a public road, there is no evidence of it being dedicated as a public road. Further the weight of the evidence points to the land being used not as a public road, but as the site of a War Memorial. The Memorial was temporarily opened in 1917, and then erected and dedicated in 1922. That has been its use ever since.
As a consequence, the weight of the evidence does not support the land being used as a road. Section 249 of the Roads Act therefore provides no assistance to the respondent's argument that it has been used by the public as road.
It is to be noted that Mr Tripp's evidence was that Memorial Square is "registered with Land and Property Information, in the name of the Commissioner for Railways." This appears to be at odds with the recitals in the Deed between Council and the Trustees. It is also at odds with statements contained in the Development Application relating to the Moochi Development that the land is owned by the respondent.
Counsel for the respondent submitted that we should find that the land is owned by the Council, and should prefer the evidence contained in the respondent's business records over that of Mr Tripp. The question of ownership of the land is important because s 232 of the Local Government Act 1919 (NSW) provided that every public road should vest in fee simple with the Council. As the land was brought under the Real Property Act 1900 (NSW) in 1920, one would have expected it have been vested in the Council at that time (and now) if it was then a public road.
The respondent did not tender a copy of the certificate of title for the land, which would have been the best means of resolving this issue. An explanation for not tendering the certificate of title may be inferred from the respondent's reliance on Stojan, which until the very recent decision of the Court of Appeal in Cavric, might have suggested that evidence of user was sufficient evidence. Nevertheless, even if that be so, the evidence of user was not, in the Appeal Panel's view, sufficient. Given the conflicting evidence provided by the respondent with respect to this issue, we are unable to determine whether the respondent or the Commissioner for Railways is the registered owner of the land.
For all of these reasons we agree with the Tribunal that it has not been established, on the balance of probabilities, that the premises are located on a "public road" under the Roads Act.
The respondent's contention is therefore rejected.

Is the appellant estopped from the denying that premises are located on a public road?

The respondent's written submissions, reiterated during the hearing of the Appeal, raised the issue that, in the circumstances, if the premises were not located on a public road, an estoppel by convention arose whereby the appellant is prevented from denying that the land is located on a public road to which the Roads Act applies. If this is the case, then the respondent submitted that the appellant could not assert that the RL Act applied to its occupation of the premises.
In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 the High Court considered the application of estoppel by convention. The Court, Gibbs C.J, Mason, Wilson, Brennan and Dawson JJ found at [22] - The final question is whether the parties are bound by an estoppel by convention because their business relationships were conducted on the footing that the broker alone was liable to the insurer. If so, Norwich cannot maintain the present action. Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. The existence of an estoppel based on a convention between the parties has often been recognized: Thompson v. Palmer [1933] HCA 61; (1933) 49 CLR 507, at p 547; Grundt v. Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, at pp 657, 675-677; Legione v. Hateley [1983] HCA 11; (1983) 152 CLR 406, at pp 430-431; Amalgamated Investment & Property Co. Ltd (in liq.) v. Texas Commerce International Bank Ltd (1982) QB 84, at pp 121, 126, 130-131; Spencer Bower and Turner, Estoppel by Representation (1977) 3rd ed., at pp.157-177.
In Waterman v Gerling Australia Insurance Company Pty Ltd (2005) 65 NSWLR 300 at 323 Brererton J explained at [84] that - In conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption. It is inherent in the idea of a mutually agreed or assumed convention that each party knew or intended that the other act on that basis. And it seems that a conventional estoppel will not arise unless departure from the assumption will occasion detriment to the plaintiff (M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd (at [72]), and see the discussion below).
In the present case the common assumption asserted by the respondent is that the premises are located on a public road. Because, so it is contended, both Moochi Operations and the respondent knew each other were acting on the basis that the land was a public road, an estoppel by convention arises which would prevent Moochi Operations resiling from that fact, if it would occasion detriment to the respondent. As the respondent characterizes the appellant as a privy of Moochi Operations, it argues that the appellant is bound by that estoppel: see H P Mercantile Pty Ltd (ACN 097 362 877) v Dierickx (2013) 306 ALR 53 at [107].
Whether or not the appellant is a privy of Moochi Operations is a matter that was not canvassed in evidence or determined by the Tribunal below. The reality is that both it and the related estoppel argument arose as part of the respondent's notice of contention, in response to the Tribunal's finding that the premises are not located on a public road (which decision we have upheld on appeal).
As we have determined, for the reasons outlined below, that a conventional estoppel cannot operate to prevent the appellant arguing that it has a retail shop lease with respect to the premises under the RL Act, it will not be necessary to remit those issues for hearing.
Section 7 of the RL Act provides - This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease.
An effect of s 7 is that if an agreement or arrangement between parties is properly characterized as a retail shop lease, which is not otherwise excluded from the operation of the RL Act, it is irrelevant that the parties did not intend the RL Act to apply: see Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 1) [2004] NSWADT 146. Provisions agreed between the parties that are inconsistent with the Act will be void. Thus no matter how the parties choose to characterise an arrangement, if it is properly construed as a retail lease, the RL Act will apply to it. Terms that are inconsistent with a retail shop lease will be void, and terms which the RL Act requires all leases to contain will be implied: e.g. see s 34.
On the second reading of the then Retail Leases Bill in the Legislative Assembly on 20 April 1994 the then Minister for Small Business opened his remarks by saying - In an ideal world this bill would not be necessary. In an ideal world parties to a retail leasing agreement would be fully aware of their own and the other party's commitments and obligations before they entered into such a lease agreement. Issues arising during the course of an agreement would be dealt with according to the terms of that lease agreement, and any disputes would be dealt with through negotiation between the parties. The truth of the matter, however, is that retail tenancies are often a matter of contention, and have been for a long time. All honourable members would have received representations on such matters - many of them quite distressing given that they are matters that have a fundamental effect on the ability of people to get on with their business and earn a living. The bill I have introduced today is intended to foster good leasing practices in the retail industry, nothing more and nothing less. The Government does not wish to interfere in commercial agreements between two parties. It seeks to ensure that retail leasing agreements are explicit as to the requirements of both parties and that they are entered into from a position of reasonably equal negotiating strength.
It is therefore clear that the RL Act was aimed at regulating the relationships between lessors and lessees under retail shop leases, to achieve a more equal basis on which they could negotiate with each other, and to ensure the application of the same standard terms and conditions to all retail leases. To that end the second reading speech noted that: Where any inconsistency arises between the provisions of the bill and the lease agreement the former will prevail. The effect of this is that lease agreements will refer to what the bill indicates, without the need for extensive drafting of individual lease agreements.
In the present case we are not satisfied that the premises are located on a public road to which the Roads Act applies. The respondent, however, seeks to raise an estoppel by convention, whereby the appellant would be precluded from denying that the premises are located on a public road, with the result that the Roads Act applies to the exclusion of the RL Act.
If a clause to the effect that, "The parties acknowledge that the premises are located on a public road to which the Roads Act applies," was included in an agreement between the parties that constituted a retail shop lease, and the premises were not located on a public road, then, insofar as the parties relied on it to exclude the operation of the RL Act, s 7 would operate to make that clause void. The position would be different were the premises actually located on a public road.
In the Appeal Panel's view, in the context of beneficial provisions of the RL Act, an estoppel by convention cannot operate to preclude a party relying on the protections offered by the Act, when a term of an agreement seeking to achieve the same result, would be void due to the operation of s 7 of the RL Act.
In Keen v Holland [1984] 1WLR 251; [1984] 1 All ER 75 the English Court of Appeal considered whether an estoppel could arise to prevent a tenant relying on protections afforded him by the Agricultural Holdings Act 1948 (11 & 12 Geo. 6, c. 63), when a contractual provision seeking to avoid those protections would be void. Oliver L.J., with whom Dunn and Fox L.JJ. agreed, explained, at 261 - Once there is in fact an actual tenancy to which the Act applies, the protection of the Act follows and we do not see how, consistently with Johnson v. Moreton [1980] A.C. 37, the parties can effectively oust the protective provisions of the Act by agreeing that they shall be treated as inapplicable. If an express agreement to this effect would be avoided, as it plainly would, then it seems to us to follow that the statutory inability to contract out cannot be avoided by appealing to an estoppel. The terms of section 2(1) are mandatory once the factual situation therein described exists, as it does here, and it cannot, as we think, be overridden by an estoppel even assuming that otherwise the conditions for an estoppel exist: see, for instance, the somewhat similar though not wholly analogous position under the Rent Acts: Welch v. Nagy [1950] 1 K.B. 455. We agree with the judge that, having regard to the purpose of the Act of 1948, it cannot be said to be unconscionable for the tenant who is protected by it to rely upon the protection which the statute specifically confers upon him. Once the protection attaches, the jurisdiction to grant possession is exercisable only subject to the statutory provisions and it is a little difficult to see how the parties can, by estoppel, confer on the court a jurisdiction which they could not confer by express agreement.
In Re Jay-O- Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O- Bees Pty Ltd (in liq) [2004] NSWSC 818 Campbell J cited Keen v Holland when holding, at [40] that, "neither an express contract nor an estoppel can operate to frustrate," the statutory obligations of a liquidator to distribute the assets of a company rateably among creditors. In Ace Insurance Ltd v Trifinovski [2011] FCA 1204, Perram J doubted that breadth of the application of the principle stated in Keen v Holland. His Honour said, at [135-137] - Often enough statutory provisions will prohibit the making of certain contracts or will declare that certain contracts or agreements, if made, will be of no force or effect. Whether laws concerning estoppel may achieve the very result which the forbidden contract may not has, in the main, turned upon a consideration of the policy at which the legislative prohibition is aimed. According to the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, the appropriate course to take in considering the effect that statutory prohibitions on certain species of contract have on estoppel is to ask 'whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise' (at 1016). There was perhaps some narrowing of that approach - which required a consideration of the nature of the public policy involved - in the Court of Appeal's decision in Keen v Holland [1984] 1 WLR 251. There the English Agricultural Holdings Act 1948 provided particular protections for holdings of land to which it applied and the Court of Appeal accepted - on the strength of Johnson v Moreton [1980] AC 37 - that the parties could not reach an agreement which treated those protections as inapplicable. More importantly, the Court was not disposed to accept that an estoppel could achieve the same result: 'If an express agreement to this effect would be avoided, as it plainly would, then it seems to us to follow that the statutory inability to contract out cannot be avoided by appealing to an estoppel' (at 261). I am not so sure that it follows that merely because a particular contract is prohibited no estoppel can ever arise. Such an approach is unnuanced. As the Privy Council noted in Kok Hoong (at 1015-1016) there are well-known categories where equitable estoppels flourish in the face of statutes which render certain contracts unenforceable not the least of which concerns the Statute of Frauds 1677 and the doctrine of part performance. 136 In this Court, the principle in Keen v Holland has been applied by a number of first instance judges. In Beckford Nominees Pty Ltd v Shell Company of Australia Ltd (1986) 73 ALR 373 a franchisee sought to outflank the operation of a provision in a statute which denied its right to renew a licence. Another provision in the same legislation (s 7) provided that any contractual provision which was inconsistent with the statute would be void to the extent of the inconsistency. 'I do not read s 7 as saying anything explicitly about estoppel,' said Pincus J 'but it is necessarily implicit in that provision that the same result cannot be achieved by an estoppel' (at 378-379). French J followed Beckford Nominees in the Full Court's decision Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95 at 104 [20]-[21] but in terms which are consistent with the more nuanced approach in Kok Hoong: 'The application of principles of estoppel and waiver to the enforcement of statutory rights depends upon their consistency with the terms and purpose of the statute creating the rights' (at 104 [21]). The other members of bench on that occasion - Lee and Carr JJ - expressly declined to consider whether an estoppel could be mounted against the operation of a federal award concluding instead that, on the facts, there was no estoppel (at 114 [62]). 137 The Kok Hoong approach was adopted by the Queensland Court of Appeal in Neumann Contractors Pty Ltd v Traspunt No.5 Pty Ltd [2010] QCA 119 at [67] and also by the NSW Court of Appeal in Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 at [51]. These being decisions of intermediate appellate courts I should, and will, follow them. That being so, it is necessary to consider the particular statutory prohibitions which apply and then to discern from them whether they identify a particular social policy which an estoppel might undermine.
In Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 the Court of Appeal considered, among other things, whether an estoppel could prevent a party relying on s 42AA of the Property Stock and Business Agents Act 1941 (NSW) which prohibited the recovery of agents commission unless certain requirements as to form in the agency agreement were complied with. Young C.J. in Eq, with whom Meagher and Beazley JJ.A. agreed, said at [51 - 55] - … there are a number of authorities to the effect that one can never have an estoppel in the face of a statute. The leading authorities for this proposition are the decision of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 and Barilla v James (1964) 81 WN (Pt 1) (NSW) 457, a decision of a Full Court consisting of Walsh, Wallace and Asprey JJ. The test to apply, according to the Privy Council in the former case at 1016, was that: "the question whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or 'on grounds of general public policy'. ... A more direct test to apply in any case such as the present, where the laws of moneylending or monetary security are involved, is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise. Thus the laws of gaming or usury ... override an estoppel ... "General social policy does from time to time require the denial of legal validity to certain transactions by certain persons. ... In all such cases there is no room for the application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man's benefit and what is for his protection are not synonymous terms. Nor is it open to the court to give its sanction to departures from any law that reflects such a policy, even though the party concerned has himself behaved in such a way as would otherwise tie his hands ... ". 52 However, in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, this Court held that the then provisions of the Local Government Act 1919 dealing with illegal subdivisions did not prevent equitable estoppels coming into operation. The report shows that the cases on no estoppel in the face of a statute were not cited to the Court nor were they referred to in any of the judgments. 53 With respect, it is not completely clear whether Silovi's case was decided on the basis that an estoppel lies in the face of a statute where the orders sought do not on their face breach the statute, or whether the estoppel raised was not one made "in the face" of a statute. It would not, however, seem to be of any great relevance in the instant case. 54 The English Court of Appeal in Shah v Shah [2001] EWCA Civ 527; [2002] QB 35 Pill LJ at [20] page 44, approved a statement of Beldam LJ in Yaxley v Gotts [2000] Ch 162, 191 that: "the general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it." 55 It would seem to me almost unarguable that the legislature has made it as plain as plain can be that there is not to be recovery of the remuneration in the instant case and that no estoppel in the face of the statute will lie.
Similarly, the Appeal Panel considers that the social policy underlying the RL Act is clear, namely, among others, reform of retail leasing by the introduction of provisions of universal application to all retail leases, and the prohibition of contracting out of those provisions. In those circumstances, an estoppel by convention cannot operate to prevent a party to a retail lease relying on the RL Act. Viewed from a different perspective, we cannot see how, given the beneficial and protective nature of the RL Act, reliance on it could be said to constitute unconscionable conduct on the part of a party entitled to its protection
As a consequence, the respondent's contention with respect to estoppel by convention must fail.

Conclusion on the appeal

In the light of the above reasons, the appellant's appeal shall be allowed. We shall set aside the decision of the Tribunal and remit the application to the CCD to be reconsidered, in accordance with these reasons, before a differently constituted Tribunal with fresh evidence allowed.

Orders 1. Appeal allowed. 2. The decision under appeal is set aside. 3. The application is remitted to the Consumer and Commercial Division to be reconsidered, in accordance with these reasons, before a differently constituted Tribunal with fresh evidence allowed. 4. The contentions in the respondent's reply are disallowed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2015

Local Government Act 1919(NSW)

Property Stock and Business Agents Act 1941(NSW)

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