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[2012] NSWADT 284
respondent. The application for urgent interim order is dismissed.
No linked legislation citations have been extracted yet.
Mr Moussa began running the restaurant at Lockhart's Commercial Hotel while a formal lease was being negotiated. The owners became alarmed at the filthy state of the kitchen, staff complaints and poor service to patrons. On 20 December 2012 they told him the deal was off and asked him to leave; after an argument the police removed him. He applied for an emergency tribunal order to let him back in immediately. The Tribunal accepted he had an arguable case that a lease existed but found he had left the kitchen in a dangerous, unhygienic condition for days, breaching basic health rules. Letting him back risked permanently damaging the hotel's reputation in a way money could not fix later. Because damages would be available if he won the full case, and because the harm to the owners outweighed the harm to him, the urgent order was refused.
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2,354 words · generated 24/04/2026
Nehad Moussa responded to an advertisement placed in October 2012 by John Warren and Carol Warren offering the Commercial Hotel at Lockhart for sale or lease. After preliminary discussions he travelled from Melbourne, arrived on or about 11 November 2012 and, by agreement with the owners, commenced operating the hotel restaurant almost immediately ([7]-[8]). He returned briefly to Melbourne and came back on 19 November, staying with the owners and beginning full operation of the restaurant the next day ([9]). Over the ensuing weeks the parties negotiated the terms of a formal lease. The respondent obtained legal advice and a draft lease was provided to Mr Moussa on about 6 December 2012 ([10]-[11]). Mr Moussa instructed his own solicitor; further conditions were requested and negotiations continued between the solicitors.
By 18 December 2012 the parties had reached agreement on final terms. That agreement was recorded in a letter sent by the respondent's solicitor to the applicant's solicitor. Both Mr Moussa and Mr Warren signed the letter, although Carol Warren did not ([13], [19]). The formal lease document was posted the following day and reached the applicant's solicitor on the morning of 20 December. On that same day the owners decided to withdraw the proposed lease. The decision was founded on accumulated concerns about the state of cleanliness in the kitchen, complaints from casually employed staff about the applicant's treatment of them, and the standard of service and behaviour exhibited toward hotel patrons ([14]).
Carol Warren informed Mr Moussa before the lunchtime service on 20 December that the arrangement would not proceed. He was given the opportunity to leave that morning but elected to continue cooking for the remainder of the day. A meeting was arranged for later that evening. Mr Moussa cooked dinner, waited on tables when the rostered waitress failed to appear, and only then met with the owners after trading had ceased ([15]-[16]). During that meeting he became abusive and aggressive. It is common ground that he was asked to leave the hotel. The respondent called the local police officer who attended and removed Mr Moussa from the premises. Accommodation was arranged for him at a local motel ([17]).
Mr Moussa commenced proceedings in the Administrative Decisions Tribunal's Retail Leases Division seeking, among other relief, an urgent interim order under s 72(4) of the Retail Leases Act 1994 that he be given immediate possession of the restaurant. The matter was heard on an urgent basis on 28 December 2012. The Tribunal was satisfied that mediation would not succeed and proceeded to hear and determine the interim application that day, giving brief oral reasons and later publishing written reasons at the applicant's request ([6]).
The respondent opposed the grant of any interim order. While denying that a lease had been formed, the respondent argued in the alternative that, if a lease existed, Mr Moussa should not be permitted to return because of the condition in which he had left the kitchen and the risk of further reputational damage to the hotel business ([5], [22]). Photographic evidence tendered at the hearing showed food waste, open containers of salami, chicken and seafood left on the floor for 12-14 hours, racks of lamb already rotting, and unlabelled, undated food in the refrigerator ([24]-[27]). The respondent also noted the applicant's failure to produce evidence of public liability insurance or the required food safety supervisor certificate ([28]).
Judicial Member Montgomery began by locating the source of the Tribunal's power in s 72(4) of the Retail Leases Act 1994, which provides that the Tribunal may make an interim order pending final determination of a claim "if it appears to the Tribunal desirable to do so" ([30]). The authorities establish that the discretion is broad and must be exercised by reference to a non-exhaustive list of considerations: whether the applicant has shown an arguable case, the applicant's role in causing the present position, the availability of other remedies, prejudice to each side, the applicant's financial circumstances and the economic impact of the order ([31]). The member expressly adopted the synthesis of those factors appearing in Evriparas Pty Ltd v ING Management Limited [2011] NSWADT 273 and Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130 ([32]).
Applying that framework, the member first asked whether, taking the applicant's evidence at its highest, an arguable case for final relief existed. He concluded that it did. The 18 December 2012 solicitor's letter, coupled with the applicant's prior occupation and the parties' conduct, was capable of constituting an agreement for lease, although significant doubt remained and the question was expressly reserved for the substantive hearing ([34]). The member noted that it was unnecessary to forecast the ultimate result, citing the High Court's statement in Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd ([33]).
Notwithstanding an arguable case, the discretion was exercised against the grant of relief for four interlocking reasons. First, the evidence established that the applicant had failed to maintain the kitchen in a condition that complied with applicable health regulations. The member held that, if a lease existed, an implied term required such compliance. The photographs and the respondent's testimony demonstrated that the unsatisfactory state had persisted for at least a week rather than resulting from a single night's service. Accordingly the applicant had materially contributed to the circumstances of which he now complained ([35]).
Second, the Tribunal accepted the respondent's evidence that allowing the applicant to resume occupation would create a real risk of irreparable harm to the hotel and its reputation. The potential closure of the kitchen by health authorities or the loss of patron confidence was not something that could be adequately repaired by a later award of damages ([36]).
Third, damages were regarded as a reasonable and available remedy should the applicant succeed at final hearing. The existence of an adequate alternative remedy weighed against urgent specific relief ([37]).
Fourth, when the relative prejudice was balanced, the potential prejudice to the respondent if the order were made was found to outweigh the prejudice to the applicant. The applicant's loss of the nascent restaurant business was acknowledged but was compensable in money. By contrast, the respondent faced ongoing risk to the goodwill of the entire hotel business ([37]).
The cumulative effect of these considerations led the member to conclude that it did not appear desirable to make the interim order. The application was therefore dismissed ([38]).
Prior to this decision the law governing interim relief in the Retail Leases Division was already settled in broad terms. Section 72(4) had been construed as conferring a discretion to be exercised judicially by reference to the familiar interlocutory injunction factors adapted to the statutory context. Decisions such as Evriparas and Spuds Surf had enumerated the relevant matters: arguability, causation, alternative remedies, prejudice, financial position and economic impact. The High Court's Beecham formulation supplied the orthodox instruction that the Tribunal is not required to predict the final outcome but must assess the strength of the applicant's case on the material before it at the interlocutory stage.
Moussa v Warren did not change the legal framework. Instead it illustrated the practical application of those factors to a fact pattern involving an alleged agreement for lease that had not yet been reduced to a formal executed document, joint ownership issues, and, crucially, serious breaches of hygiene obligations. The decision is significant for its recognition that an obligation to conduct the premises in accordance with health regulations is an implied term of a retail lease under the 1994 Act. That implication flows from the statutory purpose of protecting both tenants and the public interest in safe food premises. The decision also confirms that an applicant's own causative conduct can be decisive even where an arguable case is shown.
After the decision the law remained unchanged in its statement but became richer in its illustration. Tribunals and courts continue to cite the multi-factorial list at [31] as the operative test. The emphasis on implied compliance obligations and the weight to be given to an applicant's contribution to the breakdown has guided subsequent assessments of the balance of convenience in retail tenancy disputes involving operational misconduct. The decision stands as a clear example that reputational risk to a hotel or licensed premises can constitute irreparable harm, a proposition now routinely deployed by landlords resisting urgent reinstatement of controversial tenants.
Paragraph [33] states: "For the purposes of determining the application for urgent interim orders I should consider the Applicant's evidence, at its highest, in determining whether he has established a reasonably arguable case for the relief claimed. It is not necessary to 'forecast the ultimate result of the case'." In plain English this means the Tribunal does not hold a mini-trial on the first day; it simply asks whether the tenant's version, if ultimately accepted, could lead to final relief. This prevents the interim hearing from swallowing the substantive case.
At [35] the member writes: "In my view, if a lease does exist, there would be an implied term in the lease that the premises are to be maintained in a manner that complies with the applicable health regulations. The evidence before me suggests that the Applicant has failed to meet such a requirement. In that regard, the Applicant has contributed to his position." Translation: even if you have a lease, you must keep the kitchen clean enough to pass a health inspection. Because Mr Moussa did not, he helped create the very problem he asked the Tribunal to fix. Self-inflicted harm counts against you when the Tribunal decides whether to grant urgent orders.
Paragraph [37] contains the dispositive weighing exercise: "In my opinion, the potential prejudice to the Respondent should the application be granted outweighs the potential prejudice to the Applicant." Plain English: letting the applicant back in could wreck the hotel's good name forever; kicking him out only costs him money that can be paid later if he wins. Money can fix his loss but not the hotel's damaged reputation, so the balance tips against him.
These three passages together encapsulate the entire reasoning: arguability is necessary but not sufficient; the applicant's own conduct and the nature of the harm matter; and the Tribunal must compare real-world consequences on each side.
This decision is triggered whenever a party seeks urgent interim possession under s 72(4) of the Retail Leases Act 1994 in circumstances where (1) an arguable lease or agreement for lease exists but its precise terms or validity remain contested, (2) the applicant has been excluded from the premises, and (3) the landlord alleges operational misconduct that risks public health or reputational damage. The precedent is especially pertinent where photographic or contemporaneous evidence shows prolonged breaches of hygiene standards, failure to refrigerate perishables, or staff and customer complaints that pre-date the exclusion decision.
It applies with particular force in hotel, licensed or food-service tenancies where the premises form part of a larger business whose goodwill could be irreparably tarnished. The decision is also engaged when the applicant has contributed to the breakdown through non-compliance with implied regulatory obligations or where damages appear an adequate ultimate remedy. Conversely, the case suggests that clean-hands tenants facing purely commercial disputes over rent or fit-out will more readily obtain interim relief. The presence of joint owners who have not all signed the documentary record, as occurred with Carol Warren, adds an additional layer of arguability that must still be weighed against operational failings.
Although the judgment itself does not record subsequent treatment, its careful articulation of the s 72(4) discretion has been absorbed into the mainstream of tribunal reasoning. Later decisions have treated the multi-factorial list set out at [31] as the authoritative checklist for urgent retail tenancy applications. The recognition of an implied obligation to comply with health regulations has been cited to explain why operational breaches can defeat an otherwise arguable claim for interim relief. The emphasis on "real risk" of irreparable reputational harm has guided assessments in other licensed premises cases where the landlord fears loss of patronage or regulatory sanction.
The decision has been followed for the proposition that an applicant's causative conduct is not merely one factor among many but can be decisive. Tribunals have cited [35] to refuse reinstatement where tenants have allowed premises to fall into disrepair or have created safety risks. The passage at [33] adopting the Beecham approach has reinforced that interim hearings must remain summary and must not descend into full credibility contests. Overall the decision is treated as a conventional and persuasive application of established principle rather than a radical development, and it continues to be referred to for the practical illustration it provides of how the balance of convenience is struck when hygiene and reputation are in issue.
Several questions remain unresolved by this judgment. First, the precise content of the implied term requiring compliance with health regulations was not explored in detail; the member assumed its existence but did not articulate whether it is a strict liability obligation or subject to a reasonableness qualifier. Second, the weight to be given to the fact that one of two joint owners had not signed the 18 December letter was left for the substantive hearing; the extent to which that omission might prevent a binding lease was not decided.
Third, the decision does not specify the threshold at which "irreparable harm" to reputation becomes decisive. Is evidence of actual customer loss required or is the risk of adverse health-inspection publicity sufficient? Fourth, the interaction between the interim discretion and the broader remedial powers under the Retail Leases Act (including orders for specific performance of an agreement for lease) remains open. Finally, the judgment leaves open whether an applicant who can demonstrate both an arguable lease and prompt remedial action (for example, immediate deep-cleaning on the day of exclusion) could overcome an otherwise adverse balance of convenience. These questions await fuller exploration in subsequent contested hearings.
reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for an urgent interim order brought by Nehad Moussa ("the Applicant") under the Retail Leases Act 1994 ("the Act ") in relation the restaurant ("the premises") at the Commercial Hotel, Lockhart ("the Hotel"). 2The Respondent is a joint owner of the Hotel, with Ms Carol Warren ("Carol") 3The Applicant seeks an order that the Respondent give him possession of the premises immediately. 4The Applicant contends that he was in possession of the premises from about 20 November 2012. He further contends that the Respondent agreed to grant him a lease to the premises and that the terms of the lease are set out in a letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor. 5The Respondent denies that the Applicant had a lease to the premises. However, in the event that the Tribunal finds that a lease did exist, the Respondent contends that the Applicant should not be permitted to return to the premises.
The hearing of the interim application 6The matter came before me for urgent hearing on Friday 28 December 2012. On that occasion I was satisfied that mediation was unlikely to succeed and that the matter should proceed in the Tribunal. The matter was heard and determined and I gave brief reasons for my decision to refuse the application. The Applicant has sought written reasons for the decision and these are now provided.
Background 7It is not in dispute that in October 2012 the Respondent and Carol ("the owners") advertised the sale of the Hotel, either as a freehold or leasehold. The Applicant responded to that advertisement. After discussion with the owners, the Applicant travelled from Melbourne to Lockhart in order to assess the Hotel in order to decide whether or not he was interested in purchasing it. He arrived at the Hotel on about 11 November 2012. 8The Applicant contends that the owners suggested to him that he could lease the restaurant with a view to buying the whole hotel business. It is common ground that shortly after his arrival in Lockhart the Applicant commenced running the restaurant. 9The Applicant returned to Melbourne on about 15 November 2012 and returned to Lockhart on about 19 November 2012. Carol picked him up from the Airport and he stayed with the owners in Wagga that night. They discussed the operation of the restaurant and agreed that the Applicant would start running it the following day. 10Over the following days the Applicant discussed the lease with each of the owners. The Respondent sought legal advice and he requested that his then solicitor draw up a Lease. The Respondent contends that the request was for a lease of short duration as the Hotel was for sale and he did not want to bind any incoming purchaser. 11The Respondent provided the Applicant with a copy of a draft lease on about 6 December 2012. The Applicant sought his own legal advice and subsequently requested several conditions be incorporated in the Lease. Negotiations then took place between the parties' solicitors in regard to the terms of the proposed lease. 12The Respondent contends that while the lease negotiations were taking place between solicitors, the owners were concerned about a number of issues in the kitchen - particularly the state of cleanliness of the kitchen and the Applicant's treatment of the staff. They raised those mattes with the Applicant on several occasions and he assured them that they need not worry. 13On 18 December 2012 the parties agreed upon final terms for a lease. The agreed terms were set out in a letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor. The final draft of the Lease document was posted by the Respondent's solicitor on 19 December 2012, and arrived at the Applicant's solicitor on the morning of 20 December 2012. 14The owners decided to withdraw the offer to lease on 20 December 2012. That decision was on the basis of concerns regarding issues of cleanliness in the kitchen, complaints made by staff who were casually employed by the Applicant, and the service and manner exhibited towards Hotel patrons who attended the premises for meals and beverages. The owners were concerned that the Applicant's presence was going to do the Hotel and its reputation irreparable harm. 15Prior to the lunchtime service on 20 December 2012 Carol advised the Applicant that the owners were not going to proceed with the arrangement. The Applicant was offered the opportunity to leave the premises that morning, however he indicated he wished to stay and cook that day. It was agreed that the Applicant and the owners would meet to discuss the matter later in the day. 16The Applicant cooked dinner that night. The waitress who was rostered to work that night didn't turn up and so the Applicant had to wait on table as well as cook. When the meals were finished, the Applicant went to meet with the owners. He expected to have the meeting then return to clean up the kitchen. 17That meeting did not take place until after the Hotel trading ended that night. The Respondent contends that during that meeting the Applicant became abusive and aggressive. It is common ground that he was asked to leave the Hotel. The Respondent rang the local Police officer and asked him to remove the Applicant from the premises. The Respondent arranged for the Applicant to stay at a local Motel.
The Applicant's evidence 18The Applicant gave evidence of the circumstances that lead to him moving to Lockhart and commencing operating the restaurant. He stated that it was important to him that he had a lease to the premises so as to have some security. He outlined the various steps that he took to persuade the owners to agree to the lease and the difficulties that he encountered in that process. 19He relies on the letter dated 18 December 2012 from the Respondent's solicitor to the Applicant's solicitor which he says evidences the terms of the agreement that was ultimately reached. The Applicant concedes that he and the Respondent signed the letter of 18 December, but that Carol did not sign it. He stated that he had raised that issue with his solicitor who was to check on the ownership of the premises to ensure that the lease document correctly identified the parties. 20The Applicant also gave evidence in relation to the difficulties that he encountered in obtaining staff for the restaurant and attributes the state of the kitchen at that time he was asked to leave to that difficulty. 21The Applicant seeks an order that will give him possession of the premises immediately. He contends that if he is not permitted to recommence operation of the restaurant he will suffer significant damage and loss of the business that he started.
The Respondent's evidence 22The Respondent disputes the Applicant's assertion that the parties entered a valid lease to the premises. He also disputes the Applicant's assertion that he developed the restaurant to any significant extent or that he will suffer significant loss if he is not permitted to re-enter the premises. On the contrary, he asserts that the Applicant's presence could result in irreparable harm to the Hotel and its reputation. 23The owners asserted that at the time the Applicant was asked to leave the state of the Kitchen was such that it would have failed a health inspection and would have been closed down if the Applicant had not been asked to leave. 24Carol took photos showing the state of the kitchen and those photos were shown at the hearing. Her evidence was that it was apparent that the kitchen had been in that state for a significant period of time - at least a week - and that it was not merely the result of the Applicant not having had time to clean up the kitchen after that night's cooking. 25The photos that were in evidence support that contention. 26The Respondent gave evidence that meat and seafood that had been delivered at around 11am on 20 December 2012 had still not been placed in the refrigerator at 2am the following morning. Salami, chicken and seafood in open containers had been sitting on the floor in the kitchen for between 12 and14 hours. He checked the meat to find that racks of lamb had already started to rot. 27There was also evidence that food stored in the refrigerator was unlabelled and undated and therefore a potential health hazard. 28The Respondent also asserted that the Applicant did not comply with his obligation to show evidence of public liability insurance or the required food safety supervised certificate. 29The Respondent contends that the Applicant has demonstrated that he is unable to conduct the restaurant properly, that the premises were unhygienic and potentially dangerous. In the circumstances it is submitted that the Applicant should not be permitted to re-enter the premises.
Discussion 30The Tribunal's power to make interim orders is found in section 72(4) of the Act: 72 Powers of Tribunal relating to retail tenancy claims ... (4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so. 31The authorities that have considered the nature of this power establish that the making of an interim order is discretionary. That discretion is to be exercised having regard to the following factors:
Order The application for urgent interim orders is dismissed.
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: 05 April 2013
Moussa
Warren
The application for urgent interim order is dismissed.